Leonard E. Standifer v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 8, 2019
• Docket: 18A-CR-1794
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 08 2019, 10:47 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 Elizabeth A. Bellin Curtis T. Hill, Jr. Elkhart, Indiana Attorney General of Indiana

Laura R. Anderson Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Leonard E. Standifer, April 8, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1794 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Stephen R. Appellee-Plaintiff. Bowers, Judge Trial Court Cause No. 20D02-1410-F4-11

Barnes, Senior Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1794 | April 8, 2019 Page 1 of 5 Statement of the Case [1] Leonard E. Standifer appeals his convictions of unlawful possession of a 1 firearm by a serious violent felon, a Level 4 felony; and possession of 2 paraphernalia, a Class A misdemeanor. We affirm.

Issue [2] Standifer raises two issues, which we consolidate and restate as: whether the

trial court erred in admitting a firearm and paraphernalia into evidence at trial.

Facts and Procedural History [3] On the night of October 1, 2014, Sergeant Michael McHenry of the Elkhart

County Sheriff’s Department was on patrol with his K-9 unit. Sergeant

McHenry was trained in deploying K-9 units to search for contraband. He was

accompanied by a new officer.

[4] Sergeant McHenry saw a Chrysler Sebring pass him. The Sebring was traveling

eighty-five miles per hour in a seventy mile per hour zone, so the sergeant

initiated a traffic stop.

[5] Standifer was the Sebring’s driver, and no one else was in the car. Sergeant

McHenry approached the car and obtained Standifer’s driver’s license. He

1 Ind. Code § 35-47-4-5(c) (2014). 2 Ind. Code § 35-48-4-8.3 (2014).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1794 | April 8, 2019 Page 2 of 5 smelled an odor of marijuana emanating from the Sebring. As a result,

Sergeant McHenry had Standifer get out of the car and handcuffed him.

Standifer admitted he had smoked marijuana several hours prior and that there

was a small amount of that drug in the car.

[6] Sergeant McHenry intended to have the K-9 search for the marijuana, but he

first searched the passenger compartment to look for anything that could injure

the K-9. He found a pill bottle, which he opened. The bottle contained a green

leafy substance that later field-tested positive for marijuana. Sergeant McHenry

determined at that point that he was going to arrest Standifer.

[7] Next, Sergeant McHenry retrieved his K-9 from his car. The K-9 indicated the

presence of controlled substances at the driver’s side door handle and at the

trunk, near the latch. The sergeant returned the K-9 to his car and opened the

trunk. He found a small glass pipe with burnt residue and a brillo pad in a

container. Sergeant McHenry recognized those items as commonly used to

smoke crack cocaine. In addition, he found a handgun in another container.

Further investigation revealed that Standifer had a prior conviction of

manslaughter from New York state.

[8] On October 6, 2014, the State charged Standifer with possession of a firearm by

a serious violent felon, possession of paraphernalia, and possession of

marijuana, a Class A misdemeanor. Standifer filed a motion to suppress, which

the trial court denied after a hearing. The case was tried by jury, and the jury

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1794 | April 8, 2019 Page 3 of 5 determined he was guilty as charged. The court imposed a sentence, and this

appeal followed.

Discussion and Decision [9] Standifer does not challenge Sergeant McHenry’s decision to pull him over. In

addition, Standifer does not challenge the sergeant’s search of the passenger

compartment of his car, which led to the discovery of the marijuana. Standifer

instead claims the search of the trunk violated his federal and state

constitutional protections against unreasonable search and seizure. He

concludes the trial court should not have admitted the handgun and the

paraphernalia into evidence.

[10] The State argues Standifer has waived his constitutional claims for appellate

review. The State notes, and Standifer does not disagree, that Standifer failed

to object to the admission of the handgun and paraphernalia at trial. “When a

motion to suppress has been overruled and the evidence sought to be

suppressed is later offered at trial, no error will be preserved unless there is an

objection at that time.” Wagner v. State, 474 N.E.2d 476, 484 (Ind. 1985). We

conclude Standifer has procedurally defaulted his constitutional claims.

[11] Standifer next argues in his reply brief that regardless of waiver, admitting the

handgun and paraphernalia into evidence was fundamentally erroneous. A

panel of this Court has described the fundamental error doctrine as follows:

The fundamental error doctrine is an exception to the general rule that the failure to object at trial constitutes a procedural

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1794 | April 8, 2019 Page 4 of 5 default precluding consideration of an issue on appeal. The fundamental error exception is extremely narrow. To qualify as fundamental error, the error must be so prejudicial to the rights of the defendant as to make a fair trial impossible. The fundamental error exception applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.

Hayworth v. State, 904 N.E.2d 684, 694 (Ind. Ct. App. 2009) (quotations and

citations omitted).

[12] The State claims an appellant may not raise issues, including fundamental

error, for the first time in a reply brief. We agree. See Curtis v. State, 948 N.E.2d

1143, 1148 (Ind. 2011) (declining to address claim of fundamental error; claim

raised for first time in reply brief). As a result, we will not review Standifer’s

search and seizure claims on the merits or for fundamental error.

Conclusion [13] For the reasons stated above, we affirm the judgment of the trial court.

[14] Affirmed.

Tavitas, J., concur.

Pyle, J., dissent without opinion.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1794 | April 8, 2019 Page 5 of 5