MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                                  FILED
this Memorandum Decision shall not be                                         Jul 15 2019, 6:44 am

regarded as precedent or cited before any                                         CLERK
                                                                              Indiana Supreme Court
court except for the purpose of establishing                                     Court of Appeals
                                                                                   and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Russell B. Cate                                           Curtis T. Hill, Jr.
Cate, Terry & Gookins LLC                                 Attorney General of Indiana
Carmel, Indiana
                                                          Samuel J. Dayton
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeffrey Dean Needler,                                     July 15, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-15
        v.                                                Appeal from the Hamilton
                                                          Superior Court
State of Indiana,                                         The Honorable J. Richard
Appellee-Plaintiff.                                       Campbell, Judge
                                                          Trial Court Cause No.
                                                          29D04-1709-F6-6656



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-15 | July 15, 2019                           Page 1 of 9
                                Case Summary and Issue
[1]   Following a jury trial, Jeffrey Needler was found guilty of assisting a criminal, a

      Level 6 felony, and sentenced to 365 days in the Indiana Department of

      Correction, with 305 days suspended. Needler appeals his conviction, raising

      one issue for our review: whether the trial court committed fundamental error

      by admitting evidence resulting from an allegedly unconstitutional search of

      Needler’s residence. Concluding Needler’s claim does not assert fundamental

      error, we affirm.



                            Facts and Procedural History
[2]   On September 8, 2017, Deputies Jeffrey Wright and Todd Green from the

      Hamilton County Sheriff’s Department went to a home on Chestnut Street in

      Noblesville, Indiana, to serve an arrest warrant on Joshua Needler. A man

      identifying himself as Joshua’s grandfather greeted the officers and told them

      that Joshua was not at that address but was staying with Needler, Joshua’s

      uncle, at an address on Cicero Road. In 2016, law enforcement had served an

      arrest warrant on Joshua at that Cicero Road address and found him hiding

      under a bed.


[3]   Deputies Wright and Green then went to the Cicero Road address. Three other

      officers, including Deputy Ryan Meier, joined them because a “fairly typical”

      way of serving an arrest warrant is to have multiple officers on scene where “a

      couple [of officers] will go to the door, try to make contact at the door, then one


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-15 | July 15, 2019   Page 2 of 9
      or two will go to the back, just to make sure someone doesn’t run out the back.”

      Transcript of Evidence, Volume 2 at 70-71. Deputy Meier, with Deputy Wright

      backing him up, knocked on the door of the trailer and after several minutes

      passed during which the officers could hear movement and voices from inside,

      Needler answered. Officer Meier advised Needler that they were there looking

      for Joshua. Needler told him Joshua was not there and that he had not seen

      him for a couple of days.


[4]   Because of the “totality of circumstances, the amount of time it took to answer

      the door, the rustling in there, the previous history that Joshua had been there

      and hid in the back,” officers did not accept Needler’s answer at face value but

      continued to talk with him for approximately ten minutes. Id. at 94. Officer

      Meier asked Needler if he would allow officers into the residence to search for

      Joshua. Needler said “that he could not give [officers] permission because he

      did not own the trailer.” Id. at 73. Officers explained multiple times that if

      Needler lived there, he could give them permission to enter but he still refused.

      Officers asked “[t]wo, three, four” times if Joshua was in the trailer. Id. at 74.

      Officer Meier told Needler that he thought Joshua was in the trailer and also

      told him that if he could prove Joshua was there, he would take Needler to jail

      for assisting a criminal.


[5]   After repeated questioning, Needler finally admitted Joshua was “probably” in

      the trailer. Officer Meier said, “there’s no probably or probably not. You

      should know whether he’s in there or not. And if he’s in there, you need to let

      us in to go get him.” Id. at 96. Eventually, Needler allowed officers into the

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-15 | July 15, 2019   Page 3 of 9
      trailer and said, “follow me.” Id. As Needler led officers directly to a bedroom

      in the back of the trailer, he announced, “[T]hey’re coming in, come on out.”

      Id. Officers found Joshua hiding under blankets in a closet. Joshua was taken

      into custody on the arrest warrant.


[6]   Officers then “had further discussion” with Needler, id. at 75, pointing out “that

      he had denied [them] access and that he could have given [them] access

      immediately and [they] didn’t need to debate over it at the beginning[,]” id. at

      100. Needler claimed he was just protecting family. After Deputy Meier

      confirmed that the circumstances in 2016 when Joshua was found at the trailer

      were virtually identical, Deputy Meier took Needler into custody because “last

      time . . . they did not charge him with aiding even though they could have [and]

      I decided that since this was the second time I was going to arrest him for

      aiding a criminal.” Appellant’s Appendix, Volume II at 15.


[7]   The State charged Needler with assisting a criminal, a Level 6 felony, for

      harboring, concealing, or assisting Joshua, “a person who has committed Theft

      as a Level 6 Felony, with the intent to hinder [his] apprehension or

      punishment” while “not standing in the relationship of parent, child, or spouse”

      to Joshua. Id. at 12; see Ind. Code § 35-44.1-2-5. A jury found Needler guilty as

      charged. Needler now appeals his conviction.



                                 Discussion and Decision


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-15 | July 15, 2019   Page 4 of 9
[8]    Needler contends the trial court committed fundamental error “by allowing

       evidence of law enforcement’s entrance into a trailer to be admitted at trial” in

       violation of his federal and state constitutional rights. Appellant’s Brief at 5.


                                       I. Standard of Review
[9]    It is unclear exactly what evidence Needler claims the trial court erroneously

       admitted. Nonetheless, he tacitly acknowledges that he did not object to the

       admission of any evidence at trial. See Appellant’s Br. at 8-9 (stating standard

       of reviewing a claim of fundamental error). A contemporaneous objection is

       required to preserve evidentiary error on appeal, and the failure to timely object

       generally forfeits the issue for purposes of appellate review. Hastings v. State, 58

       N.E.3d 919, 922 (Ind. Ct. App. 2016). To avoid this, Needler contends the

       admission of evidence was fundamental error.


[10]   A claim that has been forfeited by a defendant’s failure to raise a

       contemporaneous objection can be reviewed on appeal if the reviewing court

       determines that a fundamental error occurred. Brown v. State, 929 N.E.2d 204,

       207 (Ind. 2010). The fundamental error exception is “extremely narrow[.]”

       Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). Fundamental error allows us

       to “address an error that made a fair trial impossible or constituted a clearly

       blatant violation of basic and elementary principles of due process presenting an

       undeniable and substantial potential for harm[.]” Brewington v. State, 7 N.E.3d

       946, 974 (Ind. 2014) (internal quotations and alterations omitted). “A finding

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


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-15 | July 15, 2019   Page 5 of 9
       acting when he or she should have, even without being spurred to action by a

       timely objection.” Id. (internal quotation omitted).


             II. Unconstitutional Search as Fundamental Error
[11]   Needler claims that law enforcement lacked probable cause to search the trailer,

       did not have a search warrant, and did not know whether or not Joshua was in

       the trailer and therefore had no right to enter. Needler claims the police

       nonetheless coerced him into consenting to their entry by surrounding the

       trailer and threatening to arrest him. He argues this was such “a blatant

       violation of basic constitutional principles” that the trial court should have sua

       sponte raised the issue at trial despite his own failure to object. Appellant’s Br.

       at 10.


[12]   In Brown, our supreme court explained that a showing of fundamental error

       arising from the admission of alleged illegally seized evidence is very limited:


                [A]n error in ruling on a motion to exclude improperly seized
                evidence is not per se fundamental error. Indeed, because
                improperly seized evidence is frequently highly relevant, its
                admission ordinarily does not cause us to question guilt. That is
                the case here. The only basis for questioning [the defendant’s]
                conviction lies not in doubt as to whether [the defendant]
                committed these crimes, but rather in a challenge to the integrity
                of the judicial process. We do not consider that admission of
                unlawfully seized evidence ipso facto requires reversal. Here,
                there is no claim of fabrication of evidence or willful malfeasance
                on the part of the investigating officers and no contention that the
                evidence is not what it appears to be. In short, the claimed error
                does not rise to the level of fundamental error.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-15 | July 15, 2019   Page 6 of 9
       929 N.E.2d at 207. In other words, a claim of error asserting that evidence was

       unlawfully obtained, without more, does not constitute fundamental error. See

       id.


[13]   Needler does not allege that evidence was fabricated, and he does not allege

       that the challenged evidence is not what it appears to be – there seems to be no

       question that Needler told officers Joshua was not in the trailer when Joshua

       was in fact hiding in the trailer. It is possible, however, that Needler’s claim

       that his consent for police to enter was coerced could be considered a claim of

       willful malfeasance by police, as he argues they were “devoid of information

       that would lead them to believe that [Joshua] was present at the residence,” and

       “skirt[ed] the warrant requirement by threatening arrest and surrounding [his]

       home[.]” Appellant’s Br. at 10-11.


[14]   Here, officers went to the trailer because when they went to the address listed

       on the arrest warrant, the gentleman who answered the door identified himself

       as Joshua’s grandfather and told them Joshua was at the trailer. With this

       information and the knowledge that officers had found Joshua at the trailer

       before when they were looking for him, they were not “devoid of information”

       that Joshua might be at the trailer. Moreover, Officer Wright testified it was

       “fairly typical” to have multiple officers on scene when serving an arrest

       warrant and to cover all doors so the wanted person “doesn’t run out the back.”

       Tr., Vol. II at 70-71; see also id. at 110 (officer testifying that it is “fairly

       standard” to cover the rear of a residence “[i]n case the target that we’re looking

       for would decide to run or flee”). Officers may have asked Needler if Joshua

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-15 | July 15, 2019         Page 7 of 9
       was in the residence up to four times before he finally admitted Joshua was

       there, but the interaction between police and Needler lasted only ten minutes.

       And finally, although Officer Meier did state that he would arrest Needler “if

       we can prove” Joshua is in the trailer, id. at 94, Officer Meier did not threaten

       to arrest Needler simply for refusing to allow officers to enter. “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[.]


       Black’s Law Dictionary at 956 (9th ed. 2009). None of the things Needler

       claims amounted to police coercion could be categorized as “positively

       unlawful” and therefore do not amount to willful malfeasance.


[15]   Needler gives lip service to the fact that he must show fundamental error, but

       his analysis does not show that his claims rise to the level of the “egregious

       circumstances” that fundamental error is available to address. Brown, 929

       N.E.2d at 207. Instead, Needler merely asserts that evidence was improperly

       admitted as the product of an allegedly unconstitutional search. See Appellant’s

       Br. at 12-14 (citing J.K. v. State, 8 N.E.3d 222 (Ind. Ct. App. 2014) and State v.

       Barker, 734 N.E.2d 671 (Ind. Ct. App. 2000) as cases similar to his own, but

       neither arises in the context of fundamental error). This does not call into

       question the integrity of the judicial process and is therefore insufficient to

       demonstrate fundamental error.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-15 | July 15, 2019   Page 8 of 9
                                               Conclusion
[16]   Needler has failed to establish the trial court committed fundamental error in

       the admission of evidence. His conviction is therefore affirmed.


[17]   Affirmed.


       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-15 | July 15, 2019   Page 9 of 9
