MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this May 14 2020, 9:26 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral 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 Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jonathon Luther, May 14, 2020 Appellant/Defendant, Court of Appeals Case No. 20A-CR-112 v. Appeal from the Harrison Superior Court State of Indiana, The Hon. Joseph L. Claypool, Appellee/Plaintiff. Judge Trial Court Cause No. 31D01-1903-F6-245
Bradford, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-112 | May 14, 2020 Page 1 of 7 Case Summary [1] In March of 2019, Harrison County authorities received a report that a fugitive
with an outstanding felony warrant was staying at Jonathon Luther’s house.
When confronted, Luther denied that he was harboring a fugitive. The fugitive
was eventually found hiding on Luther’s property, and the State charged him
with, inter alia, Level 6 felony assisting a criminal. Following Luther’s
conviction for assisting a criminal, the trial court sentenced him to two years of
incarceration. Luther contends that the admission of certain testimony
amounted to fundamental error and that his sentence is inappropriately harsh.
Because we disagree, we affirm.
Facts and Procedural History [2] At approximately 8:00 p.m. on March 22, 2019, Harrison County Sheriff’s
Deputy Nathan Ranke arrived at Luther’s residence with two other officers in
search of Jamie Mott, who was the subject of an outstanding arrest warrant and
was believed to be at Luther’s address. As Deputy Ranke walked toward
Luther’s detached garage, Luther and Robert Smith approached. When
Deputy Ranke asked Luther if Mott was there, Luther denied that he was.
Deputy Ranke obtained Luther’s permission to search the garage and, based on
methamphetamine pipes observed in plain sight, obtained a search warrant for
the garage and residence. Mott was discovered under a lean-to on the side of
the garage during the subsequent search.
[3] On March 26, 2019, the State charged Luther with Level 6 felony
methamphetamine possession, Level 6 felony assisting a criminal, and Class C
Court of Appeals of Indiana | Memorandum Decision 20A-CR-112 | May 14, 2020 Page 2 of 7 misdemeanor illegal possession of paraphernalia. On November 5, 2019, the
State moved to dismiss the methamphetamine and paraphernalia charges,
which motion the trial court granted. Luther’s jury trial was held on November
7, 2019.
[4] Before the presentation of evidence, Deputy Ranke testified outside the hearing
of the jury that his observation of methamphetamine pipes in Luther’s garage
had been the basis on which he had obtained the search warrant. After
discussion, the parties agreed that Deputy Ranke would only be able to testify
in front of the jury that “items of contraband” had been the basis of the warrant
application, which he did. Tr. Vol. II p. 86. The prosecutor also asked Deputy
Ranke if he had been familiar with Luther previous to March 22, 2019, and he
replied that he had been. The jury found Luther guilty of assisting a criminal,
and, on December 16, 2019, the trial court sentenced Luther to two years of
incarceration, identifying his criminal history as an aggravating circumstance.
Discussion and Decision I. Fundamental Error [5] Luther contends that the admission of Deputy Ranke’s testimony that he had
been familiar with Luther previous to March 22, 2019, and that the search
warrant was obtained based on his observation of methamphetamine pipes
constituted fundamental error. A trial court’s ruling on the admission or
exclusion of evidence is reviewed for an abuse of discretion that results in
prejudicial error. Williams v. State, 43 N.E.3d 578 (Ind. 2015). Because Luther
did not object to the testimony of which he now complains, he has waived any
Court of Appeals of Indiana | Memorandum Decision 20A-CR-112 | May 14, 2020 Page 3 of 7 claim related to its admission. See Wilson v. State, 931 N.E.2d 914, 919 (Ind. Ct.
App. 2010) (“The failure to raise an issue at trial waives the issue on appeal.”),
trans. denied. In such cases, our review is limited to determining if fundamental
error occurred. The doctrine applies only in “extraordinary circumstances[,]”
Hardley v. State, 905 N.E.2d 399, 402 (Ind. 2009), and is meant to cure the
“most egregious and blatant” trial errors, “not to provide a second bite at the
apple for defense counsel who ignorantly, carelessly, or strategically fail to
preserve an error.” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014). Even an error
that is prejudicial or that implicates a constitutional right is not in and of itself
sufficient to constitute fundamental error. Salahuddin v. State, 492 N.E.2d 292,
296 (Ind. 1986). Rather, a fundamental error is such a gross error that it renders
any possibility of a fair trial “‘impossible.’” Hardley, 905 N.E.2d at 402
(quoting Barany v. State, 658 N.E.2d 60, 64 (Ind. 1995)).
[6] Deputy Ranke testified that had been familiar with Luther previous to March
22, 2019, testimony that Luther claims prevented him from receiving a fair trial.
Detective Ranke, however, indicated only that he had previously been familiar
with Luther, elaborating no further. This simply does not qualify as evidence of
other bad acts that is generally prohibited by Indiana Evidence Rule 404(b)(1).
See id. (“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.”). Luther’s argument is premised on
the notion that the jury automatically assumed that Deputy Ranke could only
have been familiar with Luther because of Luther’s previous criminal activity.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-112 | May 14, 2020 Page 4 of 7 There is, however, absolutely nothing in the record to indicate that other bad
acts were the reason for Deputy Ranke’s familiarity or that the jury assumed
that they were. There are myriad innocuous ways in which Deputy Ranke
could have been familiar with Luther prior to March 22, 2019, and Deputy
Ranke’s testimony fell short of establishing anything more than that. Luther
has failed to establish fundamental error with regard to Deputy Ranke’s
testimony that he had been familiar with Luther prior to March 22, 2019.
[7] Luther also argues that Deputy Ranke’s testimony that the search warrant was
based on his observation of “a couple of meth pipes laying out in plain view” in
Luther’s garage constituted fundamental error. Tr. Vol. II p. 85. The testimony
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this May 14 2020, 9:26 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral 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 Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jonathon Luther, May 14, 2020 Appellant/Defendant, Court of Appeals Case No. 20A-CR-112 v. Appeal from the Harrison Superior Court State of Indiana, The Hon. Joseph L. Claypool, Appellee/Plaintiff. Judge Trial Court Cause No. 31D01-1903-F6-245
Bradford, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-112 | May 14, 2020 Page 1 of 7 Case Summary [1] In March of 2019, Harrison County authorities received a report that a fugitive
with an outstanding felony warrant was staying at Jonathon Luther’s house.
When confronted, Luther denied that he was harboring a fugitive. The fugitive
was eventually found hiding on Luther’s property, and the State charged him
with, inter alia, Level 6 felony assisting a criminal. Following Luther’s
conviction for assisting a criminal, the trial court sentenced him to two years of
incarceration. Luther contends that the admission of certain testimony
amounted to fundamental error and that his sentence is inappropriately harsh.
Because we disagree, we affirm.
Facts and Procedural History [2] At approximately 8:00 p.m. on March 22, 2019, Harrison County Sheriff’s
Deputy Nathan Ranke arrived at Luther’s residence with two other officers in
search of Jamie Mott, who was the subject of an outstanding arrest warrant and
was believed to be at Luther’s address. As Deputy Ranke walked toward
Luther’s detached garage, Luther and Robert Smith approached. When
Deputy Ranke asked Luther if Mott was there, Luther denied that he was.
Deputy Ranke obtained Luther’s permission to search the garage and, based on
methamphetamine pipes observed in plain sight, obtained a search warrant for
the garage and residence. Mott was discovered under a lean-to on the side of
the garage during the subsequent search.
[3] On March 26, 2019, the State charged Luther with Level 6 felony
methamphetamine possession, Level 6 felony assisting a criminal, and Class C
Court of Appeals of Indiana | Memorandum Decision 20A-CR-112 | May 14, 2020 Page 2 of 7 misdemeanor illegal possession of paraphernalia. On November 5, 2019, the
State moved to dismiss the methamphetamine and paraphernalia charges,
which motion the trial court granted. Luther’s jury trial was held on November
7, 2019.
[4] Before the presentation of evidence, Deputy Ranke testified outside the hearing
of the jury that his observation of methamphetamine pipes in Luther’s garage
had been the basis on which he had obtained the search warrant. After
discussion, the parties agreed that Deputy Ranke would only be able to testify
in front of the jury that “items of contraband” had been the basis of the warrant
application, which he did. Tr. Vol. II p. 86. The prosecutor also asked Deputy
Ranke if he had been familiar with Luther previous to March 22, 2019, and he
replied that he had been. The jury found Luther guilty of assisting a criminal,
and, on December 16, 2019, the trial court sentenced Luther to two years of
incarceration, identifying his criminal history as an aggravating circumstance.
Discussion and Decision I. Fundamental Error [5] Luther contends that the admission of Deputy Ranke’s testimony that he had
been familiar with Luther previous to March 22, 2019, and that the search
warrant was obtained based on his observation of methamphetamine pipes
constituted fundamental error. A trial court’s ruling on the admission or
exclusion of evidence is reviewed for an abuse of discretion that results in
prejudicial error. Williams v. State, 43 N.E.3d 578 (Ind. 2015). Because Luther
did not object to the testimony of which he now complains, he has waived any
Court of Appeals of Indiana | Memorandum Decision 20A-CR-112 | May 14, 2020 Page 3 of 7 claim related to its admission. See Wilson v. State, 931 N.E.2d 914, 919 (Ind. Ct.
App. 2010) (“The failure to raise an issue at trial waives the issue on appeal.”),
trans. denied. In such cases, our review is limited to determining if fundamental
error occurred. The doctrine applies only in “extraordinary circumstances[,]”
Hardley v. State, 905 N.E.2d 399, 402 (Ind. 2009), and is meant to cure the
“most egregious and blatant” trial errors, “not to provide a second bite at the
apple for defense counsel who ignorantly, carelessly, or strategically fail to
preserve an error.” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014). Even an error
that is prejudicial or that implicates a constitutional right is not in and of itself
sufficient to constitute fundamental error. Salahuddin v. State, 492 N.E.2d 292,
296 (Ind. 1986). Rather, a fundamental error is such a gross error that it renders
any possibility of a fair trial “‘impossible.’” Hardley, 905 N.E.2d at 402
(quoting Barany v. State, 658 N.E.2d 60, 64 (Ind. 1995)).
[6] Deputy Ranke testified that had been familiar with Luther previous to March
22, 2019, testimony that Luther claims prevented him from receiving a fair trial.
Detective Ranke, however, indicated only that he had previously been familiar
with Luther, elaborating no further. This simply does not qualify as evidence of
other bad acts that is generally prohibited by Indiana Evidence Rule 404(b)(1).
See id. (“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.”). Luther’s argument is premised on
the notion that the jury automatically assumed that Deputy Ranke could only
have been familiar with Luther because of Luther’s previous criminal activity.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-112 | May 14, 2020 Page 4 of 7 There is, however, absolutely nothing in the record to indicate that other bad
acts were the reason for Deputy Ranke’s familiarity or that the jury assumed
that they were. There are myriad innocuous ways in which Deputy Ranke
could have been familiar with Luther prior to March 22, 2019, and Deputy
Ranke’s testimony fell short of establishing anything more than that. Luther
has failed to establish fundamental error with regard to Deputy Ranke’s
testimony that he had been familiar with Luther prior to March 22, 2019.
[7] Luther also argues that Deputy Ranke’s testimony that the search warrant was
based on his observation of “a couple of meth pipes laying out in plain view” in
Luther’s garage constituted fundamental error. Tr. Vol. II p. 85. The testimony
of which Luther complains, however, was not heard by the jury, having been
elicited solely for the purpose of evaluating Luther’s objection to its admission
and the parties’ arguments regarding what Deputy Ranke would be allowed to
say on the stand. Consequently, it cannot have had any effect on the jury’s
decision. Luther has failed to establish fundamental error with regard to
Deputy Ranke’s testimony that he sought the search warrant based on his
observation of methamphetamine pipes in Luther’s garage.
II. Sentence [8] Luther contends that his two-year sentence for Level 6 felony assisting a
criminal is inappropriately harsh. We “may revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, the Court finds
that the sentence is inappropriate in light of the nature of the offense and the
character of the offender.” Ind. Appellate Rule 7(B). “Although appellate
Court of Appeals of Indiana | Memorandum Decision 20A-CR-112 | May 14, 2020 Page 5 of 7 review of sentences must give due consideration to the trial court’s sentence
because of the special expertise of the trial bench in making sentencing
decisions, Appellate Rule 7(B) is an authorization to revise sentences when
certain broad conditions are satisfied.” Shouse v. State, 849 N.E.2d 650, 660
(Ind. Ct. App. 2006), trans. denied (citations and quotation marks omitted).
“[W]hether we regard a sentence as appropriate at the end of the day turns on
our sense of the culpability of the defendant, the severity of the crime, the
damage done to others, and myriad other factors that come to light in a given
case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). In addition to the
due consideration we are required to give to the trial court’s sentencing
decision, “we understand and recognize the unique perspective a trial court
brings to its sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873
(Ind. Ct. App. 2007). The offender carries the burden to show that his sentence
is inappropriate, a burden that can only be “overcome by compelling evidence
portraying in a positive light the nature of the offense […] and the defendant’s
character[.]” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). Luther was
convicted of a Level 6 felony, and Indiana Code section 35-50-2-7 provides, in
part, that “[a] person who commits a Level 6 felony […] shall be imprisoned for
a fixed term of between six (6) months and two and one-half (2 ½) years, with
the advisory sentence being one (1) year.”
[9] The nature of Luther’s offense does not warrant a downward adjustment to his
sentence. Luther harbored a fugitive wanted on a 2012 felony warrant and,
when confronted, lied to police about that fugitive being on his property.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-112 | May 14, 2020 Page 6 of 7 Moreover, the presence of methamphetamine pipes in Luther’s garage indicates
that additional criminal conduct was either being committed or tolerated by
Luther. Harboring a fugitive and possessing paraphernalia does not meet
Luther’s burden to cast the nature of his offense “in a positive light,” which he
must do to obtain relief under Rule 7(B). Stephenson, 29 N.E.3d at 122.
[10] Luther’s character also does not justify a downward revision. While Luther
argues that his criminal history should not be considered particularly
aggravating, we disagree with that assessment. Luther has two 2004 felony
convictions for intimidation, with the two acts of intimidation occurring only
eleven days apart, and a 2009 misdemeanor conviction for illegal harvest of
ginseng. The State petitioned to have Luther’s suspended sentence revoked in
two of those cases. Moreover, Luther has been charged with sixteen other
crimes in eight cases which did not result in convictions. Despite Luther’s
convictions and many other contacts with the criminal justice system, he has
not yet chosen to conform his behavior to societal norms. We would also note
that Luther did not receive the maximum sentence, with the trial court
imposing two years of incarceration when it could have added another six
months. Luther has failed to establish that his sentence is inappropriately
harsh.
[11] We affirm the judgment of the trial court.
Baker, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-112 | May 14, 2020 Page 7 of 7