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.
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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