Douglas Alan Burris v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 28, 2017
• Docket: 22A05-1704-CR-809
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 28 2017, 6:01 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew J. McGovern Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana Monika Prekopa Talbot Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Douglas Alan Burris, December 28, 2017 Appellant-Defendant, Court of Appeals Case No. 22A05-1704-CR-809 v. Appeal from the Floyd Superior Court State of Indiana, The Honorable Maria D. Granger, Appellee-Plaintiff. Judge Trial Court Cause Nos. 22D03-1605-F5-1170 22D03-1610-F6-2190

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 22A05-1704-CR-809 | December 28, 2017 Page 1 of 13 Case Summary and Issues [1] Following a jury trial, Douglas Burris was convicted of possession of chemical

reagents or precursors with intent to manufacture a controlled substance, a

Level 6 felony; visiting a common nuisance, a Class B misdemeanor; possession

of methamphetamine, a Level 6 felony; resisting law enforcement, a Class A

misdemeanor; false informing, a Class B misdemeanor; and possession of

paraphernalia, a Class C misdemeanor. Burris appeals his conviction, raising

several issues for our review, which we consolidate and restate as: 1) whether

the trial court committed fundamental error in admitting certain evidence; and

2) whether the trial court’s sentencing statement contains a clerical error.

Concluding the trial court did not commit fundamental error, but that the trial

court’s written sentencing statement contains a clerical error, we affirm Burris’

convictions and remand to the trial court to correct the sentencing statement.

Facts and Procedural History [2] On May 28, 2016, Floyd County Deputy Sheriff Brian Case initiated a traffic

stop of a vehicle driven by Christopher Dowdle. Burris was a passenger in the

vehicle. Because there was an active warrant for Dowdle’s arrest, Officer Case

immediately placed Dowdle under arrest. Shortly thereafter, Officer Theodore

Comer, Sr., from the Georgetown Police Department arrived at the scene to

assist Officer Case.

Court of Appeals of Indiana | Memorandum Decision 22A05-1704-CR-809 | December 28, 2017 Page 2 of 13 [3] Following Dowdle’s arrest, the officers conducted an inventory search of the

vehicle and found narcotics and precursors to the manufacture of

methamphetamine. Specifically, the officers found heroin, methamphetamine,

marijuana, ecstasy, and paraphernalia including plastic bottles, forty-seven

pseudoephedrine pills, a glass jar, clear plastic tubing, plastic bags, lithium

batteries, and lighter fluid. Burris admitted the pseudoephedrine pills belonged

to him. Burris was arrested and subsequently released after posting bond.

[4] The State charged Burris, under cause number 22D03-1605-F5-001170 (“Cause

1170”), with dealing in methamphetamine, a Level 5 felony; possession of a

narcotic drug, a Level 6 felony; possession of chemical reagents or precursors

with intent to manufacture a controlled substance, a Level 6 felony; possession

of paraphernalia, a Class C misdemeanor; possession of marijuana, a Class B

misdemeanor; and visiting a common nuisance, a Class B misdemeanor.

[5] On October 18, 2016, Officers Eric May and Lynn Darensbourg of the New

Albany Police Department were dispatched to investigate a suspicious person.

When the officers arrived at the residence, there was a black Ford Ranger

parked next to the house. They discovered the Ford Ranger belonged to Burris.

The officers also observed a man, later identified as Burris, walking away from

the home. When speaking with officers, Burris identified himself as “Daniel M.

Edsell” and told the officers that a friend had dropped him off before denying

the Ford Ranger belonged to him. Doubting his story, Officer May searched

the Ford Ranger and found a cell phone that contained photos of Burris. Burris

then admitted his true identity. Shortly thereafter, while speaking with the

Court of Appeals of Indiana | Memorandum Decision 22A05-1704-CR-809 | December 28, 2017 Page 3 of 13 officers, Burris kicked off his flip flops and attempted to flee, but the officers

apprehended him following a fifteen-minute pursuit.

[6] A search of Burris’ Ford Ranger revealed a bong with green liquid inside, a

straw used to snort drugs, a bag containing a white substance, and a bag

containing methamphetamine. The bag containing methamphetamine was

found inside a wallet. The wallet also contained the driver’s license of Daniel

Edsell.

[7] The State charged Burris, under cause number 22D03-1610-F6-002190 (“Cause

2190”), with possession of methamphetamine, a Level 6 felony; resisting law

enforcement, a Class A misdemeanor; false informing, a Class B misdemeanor;

and possession of paraphernalia, a Class C misdemeanor.

[8] In December of 2016, Burris and the State agreed to consolidate Cause 1170

and Cause 2190 for trial. At trial, due to the availability of witnesses, the State

presented the cases in reverse chronological order, with the October 2016 case

being presented before the May 2016 case. When Officer Comer was asked

why he decided to come to the traffic stop to assist Officer Case, he testified he

had “previous knowledge” of Dowdle and Burris and thought he could assist

Officer Case. Transcript, Volume II at 180, 182, 184. Burris did not object to

Officer Comer’s testimony. In addition, during defense counsel’s cross-

examination of Officer Case, defense counsel inquired about Dowdle and asked

if any other officers had “experiences with Mr. Dowdle[?]” Id. at 237. Officer

Case responded, “I was also told by other officers that they’ve had experiences

Court of Appeals of Indiana | Memorandum Decision 22A05-1704-CR-809 | December 28, 2017 Page 4 of 13 with Mr. Burris also.” Id. Following this response, Burris moved for a mistrial.

The trial court denied Burris’ motion for a mistrial but admonished the jury

they were to disregard Officer Case’s statement.

[9] For the charges filed under Cause 1170, the jury found Burris guilty of

possession of chemical reagents or precursors with intent to manufacture a

controlled substance and visiting a common nuisance. Under Cause 2190, the

jury found Burris guilty of possession of methamphetamine, resisting law

enforcement, false informing, and possession of paraphernalia. The trial court

orally sentenced Burris to 900 days in the Indiana Department of Correction

(“DOC”) for possession of chemical reagents or precursors and 180 days for

visiting a common nuisance. The sentences under Cause 1170 were to run

concurrent to each other and consecutive to the sentences under Cause 2190.

Under Cause 2190, the trial court sentenced Burris to 900 days in the DOC for

possession of methamphetamine, 360 days for resisting law enforcement, 180

days for false informing, and sixty days for possession of paraphernalia. The

trial court ordered Burris’ sentence for resisting law enforcement to run

consecutively to his sentence for possession of methamphetamine but

concurrently with his remaining offenses of false informing and possession of

paraphernalia. The trial court stated Burris’ total sentence is 2160 days in the

DOC. See Tr., Vol. III at 99. Burris now appeals.

Discussion and Decision

Court of Appeals of Indiana | Memorandum Decision 22A05-1704-CR-809 | December 28, 2017 Page 5 of 13 I. Admission of Evidence [10] Burris first argues the trial court abused its discretion in admitting evidence of

Burris’ character and criminal history. A trial court has broad discretion in

ruling on evidentiary admissions. Erickson v. State, 72 N.E.3d 965, 969 (Ind. Ct.

App. 2017), trans. denied. We review its rulings for abuse of discretion, which

occurs when its decision was clearly against the logic and effects of the facts and

circumstances. Id.

[11] Burris alleges the State elicited a “drumbeat repetition” of character evidence

and criminal history which should have been excluded pursuant to Indiana

Rule of Evidence 404.1 Brief of Appellant at 22. Specifically, Burris alleges

Officer Case and Officer Comer offered unsolicited comments suggesting they

had previous encounters with Burris that amounted to character evidence and

1 Indiana Rule of Evidence 404 provides:

(a) Character Evidence.

(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

***

(b) Crimes, Wrongs, or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

Court of Appeals of Indiana | Memorandum Decision 22A05-1704-CR-809 | December 28, 2017 Page 6 of 13 criminal history. Burris complains of the following testimony from Officer

Comer and Officer Case:

[State]: [Y]ou were familiar with these two (2) subjects?

[Officer Comer]: Yes.

[State]: Okay. And you had some information that you thought would be helpful in this investigation?

[Officer Comer]: Yes. I had knowledge of . . . knowledge and information on both subjects.

[State]: [O]nce you were . . . at the scene, what did you observe?

[Officer Comer]: I observed the two (2) subjects that I have previous knowledge of were at the scene and they were both detained.

[State]: [I]n your assisting capacity there . . . did you observe anything else that you believe would be relevant to the jury?

[Officer Comer]: [O]ther than the—the methamphetamine and the prior knowledge that these subjects might have had . . . these items in their possession, no.

Court of Appeals of Indiana | Memorandum Decision 22A05-1704-CR-809 | December 28, 2017 Page 7 of 13 ***

[Defense]: Were you requested to be there or did you just hear about it and decided to show up on your own?

[Officer Comer]: I showed up on my own for the . . . mere fact that because I had the prior information about these two subjects.

Tr., Vol. II at 180-84.

[Defense]: [W]as this [Dowdle’s] first rodeo [with law enforcement]?

[Officer Case]: This was my first experience with Mr. Dowdle . . . besides what other officers had told me.

[Defense]: But other officers had many experiences with Mr. Dowdle, correct?

[Officer Case]: And I was also told by other officers that they’ve had experiences with Mr. Burris also.

Id. at 237.

Court of Appeals of Indiana | Memorandum Decision 22A05-1704-CR-809 | December 28, 2017 Page 8 of 13 [12] First, we note following Officer Case’s testimony, Burris immediately moved

for a mistrial and requested the trial court admonish the jury.2 Although the

trial court denied his motion for a mistrial, it did admonish the jury, stating,

[M]embers of the jury . . . the Court is striking the last response . . . of Officer [Case] . . . as it pertains . . . to any dealings involving [Burris]. [T]he Court is admonishing you . . . to disregard that response that has been stricken and to give it no further consideration.

[13] Id. at 239. This court may presume a timely and accurate admonishment by the

trial court will cure any defect in the admission of evidence. Green v. State, 587

N.E.2d 1314, 1317 (Ind. 1992). Burris has not offered any valid reasons3 why

this admonishment was insufficient, and we conclude the trial court’s

admonishment to the jury cured any possible error in Burris’ question and

Officer Case’s answer.

[14] Second, Burris did not object to any of Officer Comer’s testimony.

Consequently, he has waived this issue for appeal unless fundamental error has

occurred. Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013). Anticipating his

waiver of the issue, Burris alleges the trial court committed fundamental error

2 The State argues Burris has waived this argument because he did not object. However, Burris’ immediate motion for mistrial and request for an admonishment are sufficient to preserve this issue for appeal. 3 Burris alleges the admonishment was insufficient because the trial court failed to also admonish the jury regarding Officer Comer’s statements; however, as we discuss below, Burris did not object during Officer Comer’s testimony.

Court of Appeals of Indiana | Memorandum Decision 22A05-1704-CR-809 | December 28, 2017 Page 9 of 13 in admitting this evidence. We disagree, and conclude the admission of this

evidence does not constitute fundamental error.

[15] Fundamental error is an extremely narrow exception to waiver that applies only

when the error amounts to a blatant violation of basic principles, the harm or

potential for harm is substantial, and the resulting error denies the defendant

fundamental due process. Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006).

The claimed error must be so prejudicial to the rights of a defendant as to make

a fair trial impossible. Taylor v. State, 717 N.E.2d 90, 93-94 (Ind. 1999).

[16] Burris equates his case to Oldham v. State, 779 N.E.2d 1162 (Ind. Ct. App.

2002), trans. denied. There, the defendant was convicted of murder and carrying

a handgun without a license. At trial, the State introduced business cards and

photos of the defendant with text reading, “‘America’s Most Wanted,’ ‘Wanted

for: robbery, assault, arson, jaywalking,’ ‘Considered armed and dangerous,’

and ‘Approach with extreme caution.’” Id. at 1171. The defendant asserted the

admission of that evidence was fundamental error that prejudiced the jury

against him.

[17] On appeal, we determined the State used the photographs to suggest the

defendant was dangerous. Because the manner in which the State introduced

the evidence suggested the defendant had the characteristics of one who would

have guns and kill another person, its introduction would require the defendant

to refute not only the charged crimes but also the character evidence. Id. at

Court of Appeals of Indiana | Memorandum Decision 22A05-1704-CR-809 | December 28, 2017 Page 10 of 13 1173. As such, we concluded the admission of the evidence was fundamental

error. Id. at 1174.

[18] Burris’ comparison of his case to Oldham is inapposite. As we stated in that

case, the State’s evidence sought “to paint [the defendant] as a dangerous

criminal” and “was obviously inadmissible” under Indiana Rule of Evidence

404. Oldham, 779 N.E.2d at 1172. Here, the trial court issued a timely

admonishment following Officer Case’s unsolicited comment and Officer

Comer’s comments he had “prior information” or “previous knowledge” of

Dowdle and Burris were vague, innocuous, and used to explain why he assisted

with the traffic stop. Tr., Vol. II at 180-82. Although these comments also may

have been properly excluded upon objection or warranted an admonishment to

the jury, any error does not rise to the level of fundamental error. See Taylor v.

State, 86 N.E.3d 157, 161-63 (Ind. 2017) (holding no fundamental error

occurred despite the State repeatedly referring to a defendant accused of murder

by his nickname, “Looney the Shooter”). Moreover, by the time Officer Comer

testified, the jury had already heard the State’s presentation of Cause 2190,

which included overwhelming evidence Burris had an encounter with police

officers, lied to those officers, fled from them, and had narcotics in his vehicle.

Presumably, these comments did not cause the jury to infer a criminal character

any more than the fact they had just heard overwhelming evidence of his

October encounter with the police. We conclude admission of this testimony

did not deny Burris due process and therefore does not rise to the level of

fundamental error.

Court of Appeals of Indiana | Memorandum Decision 22A05-1704-CR-809 | December 28, 2017 Page 11 of 13 II. Burris’ Sentence [19] Burris also alleges the trial court’s written sentencing statement for Cause 2190

contains a clerical error. Specifically, Burris notes the written sentencing

statement orders Burris’ sentences for possession of methamphetamine,

resisting law enforcement, and false informing to run consecutively to each

other, contrary to the trial court’s oral pronouncement. The State concedes,

and we agree, this written sentencing statement contains an error.

[20] When oral and written sentencing statements conflict, we examine them

together to discern the intent of the sentencing court. Skipworth v. State, 68

N.E.3d 589, 593 (Ind. Ct. App. 2017). We may remand the case for correction

of clerical errors if the trial court’s intent is unambiguous. Id.

[21] At the sentencing hearing, the trial court stated,

[F]or the Possession of Methamphetamine . . . I’m gonna (sic) order nine hundred (900) days . . . . [F]or the Resisting Law Enforcement . . . I’m gonna (sic) order three hundred and sixty (360) days. It will run consecutive to . . . the Possession of Methamphetamine . . . so that would make a total one thousand two hundred and sixty (1260) day sentence. For the False Informing, a hundred and eighty (180) days and Possession of Paraphernalia, sixty (60) days. I will run those concurrent to each other and to the Resisting Law Enforcement offense . . . . [T]hat amounts to a total between the two (2) cases [Cause 1170 and Cause 2190] of two thousand one hundred and sixty (2160) days.

Court of Appeals of Indiana | Memorandum Decision 22A05-1704-CR-809 | December 28, 2017 Page 12 of 13 Tr., Vol. III at 99. As noted by the parties, the written sentencing statement for

Cause 2190 orders Burris’ sentences for possession of methamphetamine,

resisting law enforcement, and false informing to run consecutively to each

other.

[22] The trial court’s oral sentencing statement unambiguously evinces its intent for

Burris to serve a total of 2160 days in the DOC, with his sentences under Cause

1170 and Cause 2190 to be served consecutively. If the written sentencing

statement was correct, Burris would serve a total of 2340 days in the DOC.

Thus, we conclude the trial court’s written sentencing statement contains a

clerical error and we remand to the trial court to correct the error and order

Burris’ sentence for false informing to run concurrently with his sentences for

resisting law enforcement and possession of paraphernalia.

Conclusion [23] We conclude any error in the admission of evidence does not rise to the level of

fundamental error. However, the trial court’s written sentencing statement

contains a clerical error and we remand to the trial court to correct that error.

[24] Affirmed and remanded.

Riley, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 22A05-1704-CR-809 | December 28, 2017 Page 13 of 13