MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Aug 13 2015, 7:57 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Megan Shipley Gregory F. Zoeller Marion County Public Defender Attorney General of Indiana Appellate Division Indianapolis, Indiana Brian Reitz Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jaime Carr, August 13, 2015 Appellant-Defendant, Court of Appeals Case No. 49A02-1502-CR-81 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Clayton A. Appellee-Plaintiff Graham, Judge Trial Court Cause No. 49G07-1407-CM-36695
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-81 | August 13, 2015 Page 1 of 6 Case Summary [1] A police officer stopped Jaime Carr for speeding, searched her vehicle, and
found a handgun under the driver’s seat. Carr was charged with and found
guilty of class A misdemeanor carrying a handgun without a license.
[2] On appeal, Carr contends that the trial court erred in admitting the handgun
and her confession that the handgun belonged to her. We conclude that both
arguments are waived and therefore affirm her conviction.
Facts and Procedural History [3] On July 24, 2014, Officer Michael McKenna of the Lawrence Police
Department stopped Carr for speeding. Her boyfriend James Henderson was in
the front passenger seat. When Officer McKenna approached the vehicle, he
smelled burnt marijuana and had Carr and Henderson exit the vehicle. He
handcuffed them and sat them on the curb. He then searched the vehicle and
found a handgun under the driver’s seat. Officer McKenna “Mirandized” Carr
and Henderson and questioned them about the handgun. Tr. at 8. Carr first
stated that the handgun belonged to her and “she was in the middle of
purchasing it from her grandfather,” and she later stated that she was
“purchasing the handgun from a guy named Mike.” Id. at 9. She told the
officer that “she did not have a handgun permit and forgot to get one.” Id.
[4] The State charged Carr with class A misdemeanor carrying a handgun without
a license. At Carr’s bench trial, Officer McKenna testified largely consistent
Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-81 | August 13, 2015 Page 2 of 6 with the foregoing. 1 Carr testified that she told the officer that she did not own
a gun and did not know that there was a handgun under the seat. Michael
Jenkins testified on Carr’s behalf and stated that he had left the handgun in her
vehicle. The trial court found Carr guilty as charged, stating that it did not
“believe Mr. Jenkins” and that Carr “was the driver and constructively
possessed” the handgun that was found “under the driver’s seat[.]” Id. at 33.
Carr now appeals.
Discussion and Decision
Section 1 – Carr has waived any argument regarding the admissibility of the handgun. [5] Carr asserts that the trial court erred in admitting the handgun because the State
failed to establish that Officer McKenna had sufficient training and experience
to identify the smell of burnt marijuana, which was the basis for the warrantless
search of her vehicle. Cf. State v. Hawkins, 766 N.E.2d 749, 752 (Ind. Ct. App.
2002) (“[W]hen a trained and experienced police officer detects the strong and
distinctive odor of burnt marijuana coming from a vehicle, the officer has
probable cause to search the vehicle [without a warrant]. That is true under
both the Fourth Amendment of our federal constitution and under Article 1,
Section 11 of the Indiana Constitution.”), trans. denied. This argument is
waived because Carr failed to object to the admission of the handgun at trial.
1 The officer did not specify when he handcuffed Carr and Henderson. Carr testified that he handcuffed them after they exited and before he searched the vehicle. Tr. at 27.
Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-81 | August 13, 2015 Page 3 of 6 See Kubsch v. State, 784 N.E.2d 905, 923 (Ind. 2003) (“Failure to object at trial to
the admission of evidence results in waiver of that issue on appeal.”). Indeed,
this argument would be waived in any event because Carr failed to make a
specific objection regarding the officer’s familiarity with marijuana. See
Espinoza v. State, 859 N.E.2d 375, 384 (Ind. Ct. App. 2006) (“Under Ind.
Evidence Rule 103(a), ‘[e]rror may not be predicated upon a ruling which
admits or excludes evidence unless a substantial right of the party is affected,
and … a timely objection or motion to strike appears of record, stating the
specific ground of objection, if the specific ground was not apparent from the
context ….’ Grounds for objection must be specific and any grounds not raised
in the trial court are not available on appeal. The objection must be sufficiently
specific to alert the trial judge fully of the legal issue. The complaining party
may not object in general terms but must state the objection with specificity.”)
(citations, quotation marks, and alterations omitted).
Section 2 – Any argument regarding the admission of Carr’s confession is waived, and any error in the admission of the confession is harmless beyond a reasonable doubt. [6] Carr also contends that the trial court erred in admitting Officer McKenna’s
testimony that she confessed that the handgun belonged to her because the State
failed to establish that he adequately advised her of her Miranda 2 rights before
he questioned her. Although Carr objected on foundational grounds when
2 Miranda v. Arizona, 384 U.S. 436 (1966).
Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-81 | August 13, 2015 Page 4 of 6 Officer McKenna testified that he “Mirandized” her without specifying which
rights he advised her of, Tr. at 8, she did not object to his testimony that she
confessed that the handgun belonged to her. Id. at 9. Therefore, this argument
is waived. Kubsch, 784 N.E.2d at 923.
[7] Waiver notwithstanding, any error in the admission of this testimony is
harmless beyond a reasonable doubt because the State presented ample
evidence that Carr constructively possessed the handgun. Cf. Hall v. State, No.
49S05-1412-CR-728, 2015 WL 4041306 at *6 (Ind. July 2, 2015) (“‘[B]efore a
federal constitutional error may be held harmless, the court must be able to
declare a belief that it was harmless beyond a reasonable doubt.’”) (quoting
Chapman v. California, 386 U.S. 18, 24 (1967)). “Similar to a harmless error
analysis, a court determining whether an error is harmless beyond a reasonable
doubt must do so on review of the whole record.” Id. at *7.
[8] “Constructive possession is established by showing that the defendant has both
the intent and capability to maintain dominion and control over the
contraband.” Richardson v. State, 856 N.E.2d 1222, 1228 (Ind. Ct. App. 2006),
trans. denied (2007).
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Aug 13 2015, 7:57 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Megan Shipley Gregory F. Zoeller Marion County Public Defender Attorney General of Indiana Appellate Division Indianapolis, Indiana Brian Reitz Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jaime Carr, August 13, 2015 Appellant-Defendant, Court of Appeals Case No. 49A02-1502-CR-81 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Clayton A. Appellee-Plaintiff Graham, Judge Trial Court Cause No. 49G07-1407-CM-36695
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-81 | August 13, 2015 Page 1 of 6 Case Summary [1] A police officer stopped Jaime Carr for speeding, searched her vehicle, and
found a handgun under the driver’s seat. Carr was charged with and found
guilty of class A misdemeanor carrying a handgun without a license.
[2] On appeal, Carr contends that the trial court erred in admitting the handgun
and her confession that the handgun belonged to her. We conclude that both
arguments are waived and therefore affirm her conviction.
Facts and Procedural History [3] On July 24, 2014, Officer Michael McKenna of the Lawrence Police
Department stopped Carr for speeding. Her boyfriend James Henderson was in
the front passenger seat. When Officer McKenna approached the vehicle, he
smelled burnt marijuana and had Carr and Henderson exit the vehicle. He
handcuffed them and sat them on the curb. He then searched the vehicle and
found a handgun under the driver’s seat. Officer McKenna “Mirandized” Carr
and Henderson and questioned them about the handgun. Tr. at 8. Carr first
stated that the handgun belonged to her and “she was in the middle of
purchasing it from her grandfather,” and she later stated that she was
“purchasing the handgun from a guy named Mike.” Id. at 9. She told the
officer that “she did not have a handgun permit and forgot to get one.” Id.
[4] The State charged Carr with class A misdemeanor carrying a handgun without
a license. At Carr’s bench trial, Officer McKenna testified largely consistent
Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-81 | August 13, 2015 Page 2 of 6 with the foregoing. 1 Carr testified that she told the officer that she did not own
a gun and did not know that there was a handgun under the seat. Michael
Jenkins testified on Carr’s behalf and stated that he had left the handgun in her
vehicle. The trial court found Carr guilty as charged, stating that it did not
“believe Mr. Jenkins” and that Carr “was the driver and constructively
possessed” the handgun that was found “under the driver’s seat[.]” Id. at 33.
Carr now appeals.
Discussion and Decision
Section 1 – Carr has waived any argument regarding the admissibility of the handgun. [5] Carr asserts that the trial court erred in admitting the handgun because the State
failed to establish that Officer McKenna had sufficient training and experience
to identify the smell of burnt marijuana, which was the basis for the warrantless
search of her vehicle. Cf. State v. Hawkins, 766 N.E.2d 749, 752 (Ind. Ct. App.
2002) (“[W]hen a trained and experienced police officer detects the strong and
distinctive odor of burnt marijuana coming from a vehicle, the officer has
probable cause to search the vehicle [without a warrant]. That is true under
both the Fourth Amendment of our federal constitution and under Article 1,
Section 11 of the Indiana Constitution.”), trans. denied. This argument is
waived because Carr failed to object to the admission of the handgun at trial.
1 The officer did not specify when he handcuffed Carr and Henderson. Carr testified that he handcuffed them after they exited and before he searched the vehicle. Tr. at 27.
Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-81 | August 13, 2015 Page 3 of 6 See Kubsch v. State, 784 N.E.2d 905, 923 (Ind. 2003) (“Failure to object at trial to
the admission of evidence results in waiver of that issue on appeal.”). Indeed,
this argument would be waived in any event because Carr failed to make a
specific objection regarding the officer’s familiarity with marijuana. See
Espinoza v. State, 859 N.E.2d 375, 384 (Ind. Ct. App. 2006) (“Under Ind.
Evidence Rule 103(a), ‘[e]rror may not be predicated upon a ruling which
admits or excludes evidence unless a substantial right of the party is affected,
and … a timely objection or motion to strike appears of record, stating the
specific ground of objection, if the specific ground was not apparent from the
context ….’ Grounds for objection must be specific and any grounds not raised
in the trial court are not available on appeal. The objection must be sufficiently
specific to alert the trial judge fully of the legal issue. The complaining party
may not object in general terms but must state the objection with specificity.”)
(citations, quotation marks, and alterations omitted).
Section 2 – Any argument regarding the admission of Carr’s confession is waived, and any error in the admission of the confession is harmless beyond a reasonable doubt. [6] Carr also contends that the trial court erred in admitting Officer McKenna’s
testimony that she confessed that the handgun belonged to her because the State
failed to establish that he adequately advised her of her Miranda 2 rights before
he questioned her. Although Carr objected on foundational grounds when
2 Miranda v. Arizona, 384 U.S. 436 (1966).
Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-81 | August 13, 2015 Page 4 of 6 Officer McKenna testified that he “Mirandized” her without specifying which
rights he advised her of, Tr. at 8, she did not object to his testimony that she
confessed that the handgun belonged to her. Id. at 9. Therefore, this argument
is waived. Kubsch, 784 N.E.2d at 923.
[7] Waiver notwithstanding, any error in the admission of this testimony is
harmless beyond a reasonable doubt because the State presented ample
evidence that Carr constructively possessed the handgun. Cf. Hall v. State, No.
49S05-1412-CR-728, 2015 WL 4041306 at *6 (Ind. July 2, 2015) (“‘[B]efore a
federal constitutional error may be held harmless, the court must be able to
declare a belief that it was harmless beyond a reasonable doubt.’”) (quoting
Chapman v. California, 386 U.S. 18, 24 (1967)). “Similar to a harmless error
analysis, a court determining whether an error is harmless beyond a reasonable
doubt must do so on review of the whole record.” Id. at *7.
[8] “Constructive possession is established by showing that the defendant has both
the intent and capability to maintain dominion and control over the
contraband.” Richardson v. State, 856 N.E.2d 1222, 1228 (Ind. Ct. App. 2006),
trans. denied (2007).
In cases where the accused has exclusive possession of the premises on which the contraband is found, an inference is permitted that he or she knew of the presence of contraband and was capable of controlling it. However, when possession of the premises is non-exclusive, the inference is not permitted absent some additional circumstances indicating knowledge of the presence of the contraband and the ability to control it.
Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-81 | August 13, 2015 Page 5 of 6 Id. (citation omitted). Among those additional circumstances are proximity of
the defendant to the contraband and location of the contraband in close
proximity to items owned by the defendant. Id. at 1229.
[9] Here, the handgun was found in Carr’s vehicle beneath the driver’s seat in
which she was sitting when Officer McKenna pulled her over. The State
presented photographic evidence and testimony from the officer that it would
have been very difficult, if not impossible, for a backseat passenger to slide the
handgun under the seat. There was no backseat passenger in the vehicle at the
time of the stop, and no evidence was presented that the handgun was owned
by Henderson, Carr’s front-seat passenger. And finally, the trial court
specifically stated that it did not believe the testimony of Jenkins, who claimed
that the handgun belonged to him. Based on the foregoing, we conclude that
any error in the admission of Carr’s confession was harmless beyond a
reasonable doubt. Consequently, we affirm her conviction.
[10] Affirmed.
May, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-81 | August 13, 2015 Page 6 of 6