Steven Nowling v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: January 31, 2012
• Docket: 31A01-1010-CR-552
• Status: Published

Opinion

FOR PUBLICATION FILED Jan 31 2012, 9:16 am

CLERK of the supreme court, court of appeals and tax court

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MATTHEW J. MCGOVERN GREGORY F. ZOELLER Evansville, Indiana Attorney General of Indiana

J.T. WHITEHEAD Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

STEVEN NOWLING, ) ) Appellant-Defendant, ) ) vs. ) No. 31A01-1010-CR-552 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE HARRISON SUPERIOR COURT The Honorable Roger D. Davis, Judge Cause No. 31D01-1004-FC-277

January 31, 2012

OPINION ON REHEARING - FOR PUBLICATION

BROWN, Judge Steven Nowling has petitioned for rehearing of our opinion in Nowling v. State,

955 N.E.2d 854 (Ind. Ct. App. 2011), in which we affirmed Nowling’s conviction for

possession of methamphetamine as a class D felony. In his petition, Nowling asks us to

revisit our reliance upon the testimony of William Bowles, which we noted was admitted

“without objection” and which indicated that the pen hull seized by officers tested

positive for methamphetamine, “because Nowling interjected a continuing objection to

the evidence illegally seized from his home.” Petition at 4; see Nowling, 955 N.E.2d at

863. We grant Nowling’s petition for the limited purpose of clarifying our analysis and

affirm our original opinion.

At trial, during the testimony of Nowling’s probation officer, Jeff Skaggs,

Nowling renewed his motion to suppress the evidence seized pursuant to the Fourth

Amendment and Article 1, Section 11 of the Indiana Constitution, and when the court

overruled his motion, he asked “permission for continuing objection,” which was granted.

Transcript at 139. Nowling also requested a continuing objection to the admission of his

statements to the officers based upon the Fifth Amendment and Miranda, which the court

granted. Also, during the testimony of Officer Katrina Smith, Nowling stated that he

wanted “to make sure my continuing objection, both upon the motion to suppress

evidence and the statement. I’d like to make sure that they’re still continuing through this

witness,” to which the court replied “[s]ure,” and subsequently: “This one and all others.”

Id. at 151.

As indicated in our original opinion, the State recalled Probation Officer Jeff

Skaggs, without objection from Nowling, and Skaggs testified “that Nowling admitted at

2 his probation revocation hearing that he possessed the paraphernalia seized on February

26, 2010,” which was the pen hull. Nowling, 955 N.E.2d at 863. We noted that the State

also called William Bowles, a forensic scientist with the Indiana State Police Laboratory,

to the stand. Id. During Bowles’s testimony, the State moved to enter into evidence

State’s Exhibit 4, which was a certificate of analysis regarding the results of lab testing of

the pen hull and was signed by Bowles, to which Nowling explicitly stated: “No

objection. Thank you.” Transcript at 213. The record thereafter indicates: “STATE’S

EXHIBIT 4 ADMITTED WITHOUT OBJECTION.” Id. The State also moved to

publish Exhibit 4, to which Nowling stated: “No objection.” Id. at 214. The record

thereafter indicates: “STATE’S EXHIBIT 4 PUBLISHED TO JURY.” Id. Bowles

testified, relying on the results recited in Exhibit 4, that the pen hull “contained

methamphetamine and cocaine.” Id.

This court has previously held that a party may waive its objection to certain

evidence based upon a continuing objection when it subsequently indicates that it has no

objection to a particular piece of evidence. Hayworth v. State, 904 N.E.2d 684, 693-694

(Ind. Ct. App. 2009). In Hayworth, we noted that “after lodging a continuing objection to

the methamphetamine shopping list,” and after the defendant “repeated her continuing

objection to Exhibits 6 and 7,” she “inexplicably” stated “No objection” regarding

Exhibits 8-12 and 16-23. Id. at 693. We held that “[b]y stating ‘No objection,’ we find

that Hayworth has waived her objection to that evidence,” noting that “[t]he proper

procedure . . . would have been for Hayworth to have remained silent when the State

introduced those various exhibits.” Id. at 693-694. We noted that the defendant’s

3 affirmative statements of “No objection” were “confusing to the trial court” and that we

would not read the “simple and powerful two-word phrase” as having meant “no

objection other than the continuing objection.” Id. at 694. Accordingly, we conclude

that, if Nowling’s continuing objection applied to Bowles’s testimony regarding Exhibit

4, Nowling waived his ability to challenge the admission of Exhibit 4 on appeal by

stating that he had no objection.

Based on the foregoing, we grant Nowling’s petition for rehearing for the limited

purpose of clarifying our analysis and affirm our original opinion.

FRIEDLANDER, J., and BAILEY, J., concur.