Jihand Johnson v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: August 22, 2014
• Docket: 49A02-1401-CR-6
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of Aug 22 2014, 8:58 am establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

DEBORAH MARKISOHN GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana

KATHERINE MODESITT COOPER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

JIHAND JOHNSON, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1401-CR-6 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MARION COUNTY SUPERIOR COURT The Honorable Kimberly Brown, Judge Cause No. 49F07-1302-CM-009018

August 22, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Chief Judge Case Summary

Jihand Johnson appeals his conviction in a bench trial of Class A misdemeanor

carrying a handgun without a license. He argues that the trial court committed reversible

error when it admitted the handgun into evidence because the gun was discovered as the

result of search that violated both the United States and Indiana Constitutions. Finding that

Johnson has waived this issue, and that the gun was merely cumulative of other evidence,

we affirm.

Facts and Procedural History

At approximately 2:00 p.m. on February 7, 2013, a robbery victim flagged down

Indianapolis Metropolitan Police Department Officer Lee Rabensteine. A witness told the

officer that a suspect had just run into a nearby building that housed one or two apartments.

Officer Rabensteine and Officer Adam Mengerink noticed Johnson exit the building.

Officer Rabensteine stopped and detained Johnson while officers continued to search for

other suspects. Officer Rabensteine asked if he could check Johnson’s pockets for items

stolen during the robbery. Johnson consented to the search, and Officer Rabensteine found

a handgun that was unrelated to the robbery in Johnson’s pocket.

Officer Rabensteine arrested Johnson for carrying a handgun without a license

because Johnson did not have a valid permit. At a bench trial, Officer Rabensteine testified

without objection that he found a gun when he searched Johnson’s pockets. Officer

Mengerink testified without objection that he observed the search and saw Officer

Rabensteine pull a handgun out of Johnson’s pocket. The trial court convicted Johnson of

carrying a handgun without a license.

2 Johnson now appeals.

Discussion and Decision

Johnson contends that the trial court erred in admitting into evidence the handgun

found during the search of his pockets. Specifically, he argues that the gun was discovered

as the result of an illegal search and seizure, which violated both the United States and

Indiana Constitutions. Johnson, however, has waived appellate review of this issue

because he failed to make a contemporaneous objection to the admission of the gun into

evidence at trial. See Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (stating that the

failure to make a contemporaneous objection to the admission of evidence at trial results

in waiver of the error on appeal).

Waiver notwithstanding, even if the trial court erred in admitting the evidence, the

improper admission of evidence is harmless error when the erroneously admitted evidence

is merely cumulative of the other evidence before the trier of fact. Purvis v. State, 829

N.E.2d 572, 585 (Ind. Ct. App. 2005), trans. denied. Here, Officer Mengerink testified

without objection that he observed the search and saw Officer Rabensteine pull a handgun

out of Johnson’s pocket. Because the gun was merely cumulative of Officer Mengerink’s

testimony, any error in admitting the gun into evidence was harmless. See id. We therefore

affirm Johnson’s conviction for carrying a handgun without a license.

Affirmed.

FRIEDLANDER, J., and MAY, J., concur.