Court of Appeals of Indiana | Memorandum Decision 20A

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### MEMORANDUM DECISION 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 establishing the defense of res judicata, collateral estoppel, or the law of the case.

A TTORNEY FOR A PPELLANT Michael D. Gross Lebanon, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Josiah Swinney Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Emily Gail McFarling , Appellant

- Defendant,

v.


### State of Indiana , Appellee

- Plaintiff , November 16, 2020 Court of Appeals Ca se No. 20A

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- 73 Appeal from the Boone Superior Court The Honorable Bruce E. Petit, Judge Trial Court Cause No. 06D02

- 1706

- F6

- 1069

Robb , Judge
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# Case Summary and Issue

[1] Following a jury trial, Emily Gail McFarling was convicted of operating a vehicle while intoxicated, a Level 6 felony ; leaving the scene of an accident, a Class B misdemeanor ; and admitted to be ing an habitual vehicular substance offender

. The trial court sentenced McFarling to an aggregate of six year s

. McFarling now appeal s raising two issues. 1 We find the following restated issue to be dispositive : whether McFarling waived her right to a ppeal the admission of evidence stemming from a traffic stop

. We conclude that by not contemporaneously objecting when the challenged evidence was offered at trial , McFarling failed to preserve any error for appeal

. Accordingly, we affirm.



# Facts and Procedural History

[2] On June 24, 2017, Kyle Burress was in the backyard of his friends’ home , located at County Road 400 East in Boone County , when he heard a “ loud bang” in front of the ho use

. Transcript of Evidence, Volume 2 at 143. Burress walk ed out front to investigate when he heard a “ second bang” and noticed a white truck with a trailer in the neighbor’s driveway. Id. The truck was “moving back and forth” like it was stuck and there were a couple of other loud bangs.

1 The two issues McFarling brings are: (1) “Whether the police had reasonable suspicion to support the investigatory stop of [] McFarling [ ; ] ” and (2) “ Whether [] McFarling preserved the issue presented in Issue No. 1 for the purposes of appeal?” B rief of Ap pellant at 5. McFarling argues in Issue 1 that police did not have reasonable suspicion for the stop of her vehicle and any statements or evidence obtained as a result of the stop should have be en suppressed and not admitted at trial

. See i d. at 11.Court of Appeals of Indiana | Memorandum Decision 20A

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Id. The truck appeared to be hitting a utility pole

. After seemingly getting free from the utility pole , the truck drove through the grass before getting back on the road a nd head ing north. Burress then called 9

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- 1. Burress g ave the 9

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- 1 operator his name, number , location, a description of the truck , and relayed what he just witnessed including the direction the truck and trailer had gone.

[3] Officer Paul Baldwin of the Zionville Police Department was off duty and driving home when he “heard radio traffic of a hit and run” including the description of a “ white F ord pick

- up truck pulling a horse trailer .” Id. at 155. Officer Baldwin located the truck approximately eight minutes after the radio call. Officer Baldwin believed that the truck did not stop at the stop sign at the intersection of County Road 275 North and County Road 600 East and stopped the vehicle

. McFarling was the driver of the truck. After Officer Baldwin initiated the traffic stop , h e waited for on

- duty county officers to arrive before proceeding. Sergeant Craig Fouts and Deputy Neil Randolph of the Boone County Sheriff’s Department were on duty and drove separately to the scene.

[4] Sergeant Fouts arrived at the traffic stop first. Serg eant Fouts asked McFarling whether she had struck a pole and she responded that she may have. Sergeant Fouts noticed that McFarling had “glassy bloodshot eyes, slurred speech, [and ] the odor of an alcoholic beverage coming from her person and vehicle.” Id. at 183. Sergeant Fouts administered three field sobriety tests to McFarling : the horizontal gaze nystagmus test , the walk and turn test , and the one leg stand. Sergeant Fouts testified that McFarling failed all three tests. See i d. at 185

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[5] Deputy Rand olph arrived while Sergeant Fouts was engaged with McFarling.
He had first gone to the scene of the alleged hit and run and spoke n to Burress. While there, Deputy Randolph noticed that the utility pole was tilted and took photographs. See id. at 171. Upon learning Sergeant Fouts and Officer Baldwin
had located the suspect vehicle, Deputy Randolph drove to that location . Once there, Deputy Randolph also photographed the back of the trailer where there was some damage to the left side.

[6] After administering th e field sobriety tests , Sergeant Fouts believe d that McFarling had operated a motor vehicle while intoxicated ; however , McFarling refused to submit to a chemical test so Sergeant Fouts applied for and was granted a search warrant

. Sergeant Fouts took McFarling to the hospital to take blood for the test ; however , she refused to cooperate , and no chemical test was done

.

[7] On June 26, 2017 , the State charge d McFarling with operating a vehicle while intoxicated endangering a person, a Class A misdemeanor ; operating a vehicle while intoxicated, a Class C misdemeanor ; public intoxication, a Class B misdemeanor ; and leaving the scene of an accident, a Class B misdemeanor. The State also pursued a habitual vehicular substance offender enhancement

a nd an enhancement raising the operating while intoxicated charge from a Class C misdemeanor to a Level 6 felony because of a prior conviction

.

[8] On August 20, 2018, McFarling filed a Motion to Suppress seeking to exclude all evidence from the traffic stop a lleging the traffic stop was made withoutCourt of Appeals of Indiana | Memorandum Decision 20A

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reasonable suspicion. The trial court held a hearing on the Motion to Suppress to determine the validity of the traffic stop. The trial court denied McFarling’s Motion to Suppress, finding that there was reasonable suspicion for Officer Baldwin to “ make that initial stop , and then for Sergeant Fouts to do any follow up upon his observations of [McFarling] after he approached the vehicle

. ” Tr., Vol. 2 at 53. McFarling made no objections when any of the evi dence challenged in her Motion to Suppress was offered at trial

.

[9] Following the jury trial , McFarling was found guilty of all charges brough t before th e jury. McFarling subsequently admitted to her prior conviction s for purposes of the Level 6 felony and h abitual vehicular substance offender enhancements during Phase II of the trial

. At the sentencing hearing, the trial court merged the Class A operating a vehicle while intoxicated endangering a person, Class C operating a vehicle while intoxicated, and Cla ss B public intoxication charges into the enhanced Level 6 operating a vehicle while intoxicated count, and entered judgment of conviction only for Level 6 operating while intoxicated and Class B misdemeanor leaving the scene of an accident. Appealed Order (December 12, 2019 Sentencing Order) at 3. The trial court sentenced McFarling to two years for operating a vehicle while intoxicated (concurrent with 180 days for leaving the scene of an accident), enhanced by four years for the habitual vehicular substa nce offender finding, for an aggregate sentence of six year s

. F our years were ordered to be executed at the Indiana Department of Correction with two years suspended to probation. McFarling now appeals.Court of Appeals of Indiana | Memorandum Decision 20A

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# Discussion and Decision

[10] On appeal, McFarling claims that the trial court abused its discretion when it admitted evidence obtained as a result of a traffic stop conducted without reasonable suspicion of criminal activity. 2 It is well settled that the admission of evidence is entr usted to the sound discretion of the trial court, and the trial

court ’ s decision on the admission of evidence will not be reversed on appeal absent a showing of abuse of that discretion. Dickey v. State , 999 N.E.2d 919, 921 (Ind. Ct. App. 2013).

[11] Prior to t rial, McFarling filed a Motion to Suppress to exclude all statements or evidence obtained as a result of the traffic stop. However, a ruling on a pretrial motion to suppress “is not intended to serve as the final determination of admissibility because it [ is] subject to modification at trial .” Cochran v. State , 843 N.E.2d 980, 98 2

- 8 3 (Ind. Ct. App. 2006), trans. denied , cert. denied , 549 U.S. 1122 (2007)

. Therefore, “the trial court ’ s denial of a motion to suppress is insufficient to preserve error for appe al.” Hollingsworth v. State , 907 N.E.2d 1026, 1029 (Ind. Ct. App. 2009) (quotation omitted). Instead, t o preserve error in the denial of a motion to suppress , the party must “reassert [her] objection at

2 Bec ause we hold that McFarling waived this issue , we need not address whether there was reasonable suspicion for the traffic stop. However, i t is well established in Indiana that a tip from a concerned citizen may justify an investigatory stop if it is sufficiently reliable. Russell v. State , 993 N.E.2d 1176, 1180 (Ind. Ct. App. 2013) . The reliability of a concerned citizen tip “generally must be established by reference to underly ing facts and circumstances which indicate that the information is trustworthy.” State v. Renzulli , 958 N.E.2d 1143, 1147 (Ind. 2011). Burress provided the 9

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- 1 operator with his name, the location of the incident, a description of the vehicle , and the di rection the vehicle was headed. Additionally, the information was corroborated when Deputy Randolph spoke to Burress. The information was sufficient ly trustworth y
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trial contemporaneously with the introduction of the evidence.” Neukam v.
State , 934 N.E.2d 198, 201 (Ind. Ct. App. 2010).

[12] McFarling concedes that, generally, “ [ w ] hen a motion to suppress has been overruled, . . . one must object at trial at the time the e vidence is presented to preserve any error for appeal.” Br. of Appellant at 18 (citing Wagner v. State , 474 N.E.2d 476, 484 ( Ind. 1985) ) . However, McFarling argues that a “definitive ruling in limine preserves an issue for appellate review without the need for later objection[.]” Id. ( quoting Wilson v. Williams, 182 F.3d 562, 563 (7 th Cir. 1999)). We disagree.

[13] Wilson is federal law that we find unpersuasive. W ilson concern s a motion in
limine , which is distinct from a motion to suppress. See Lagenour v. State , 268 Ind. 441, 376 N.E.2d 475, 450 (1978) (differentiating motions in limine , which seek to prevent potentially prejudicial matter from being presented to a jury until the trial court can rule upon its admissibility in the context of the trial, and motions to suppress, which seek to absolutely prohibit use of certain evidence)

. Further, even if we were to apply the motion in limine standard for preserving error to th is case , McFarling’s argument would fail. O ur supreme court has consistent ly held that “ in order to preserve error in the overruling of a pre

- trial motion in limine , the appealing party also must have objected to the admission of the evidence at the time it was offered.” Clausen v. State, 622 N.E.2d 925 , 927 (Ind. 1993). Failure to object at trial to the admission of the evidence results in

wa i ver of the error. Id.Court of Appeals of Indiana | Memorandum Decision 20A

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[14] There are a few exceptions to the requirement for contemporaneous objections to preserve an issue for appeal. 3 For example, Indiana recognizes continuing objections “ to avoid the futility and waste of time inherent in requiring repetition of the same unsuccessful objection each time a party offers evidence of a given character. ” Hutcherson v. State , 966 N.E.2d 766, 770 (Ind. Ct . App. 2012) , trans. denied

. Further , our supreme court has held that when , during a pretrial hearing, a “judge provide[s] explicit assurance that an objection . . . [will be] preserved for appeal [,] ” contemporaneous objections are not necessary. Vehorn v. State , 717 N.E.2d 869, 873 (Ind. 1999)

.

[15] McFarling concedes that no objections were made when any of the evidence challenged in the motion to suppress was offered at trial, but she direct s us t o the following exchange which occurred during Phase II of the trial :
[Defense Counsel] : Your Honor, I ’ d like to inform the Court that my client has impressed upon me her desire to stipulate to [her prior convictions] . However first I ’ d like to make sure that the record is made and the suppress ion issue is preserved for purposes of appeal just in case my client wishes to appeal at some point in the future.

BY THE COURT: Your, we would show that there was a Motion to Suppress which the Court did deny where the issues were raised w ith regard to t he, the actual stop of the truck and

3 A claim that has been forfeited by a party ’s failure to make a timely objection can also be reviewed on appeal under the narrow f undamental error exception. See Laird v. State , 103 N.E.3d 1171, 117 6 (Ind. Ct. App. 2018) , trans. denied . However, McFarling does not raise the issue of fundamental error.Court of Appeals of Indiana | Memorandum Decision 20A

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trailer by Officer Baldwin and any subsequent investigations that occurred after that stop.

B r. of Appellant at 17

- 18 (quoting Tr., Vol. 3 at 3)

.

[16] McFarling does no t elaborate as to the purpose of including this exchange in her brief . Generally, arguments presented by the appellant must be supported by cogent reasoning

. See Ind. Appellate Rule 46(A)(8)(a). To the extent she argues by its inclusion that she did preserv e the error, we disagree. First , t he exchange
did not occur at the pretrial hearing so the Vehorn exception does not apply. See Vehorn, 717 N.E.2d at 8 7 3 (holding explicit assurance given at pretrial hearing was an exception to the contemporaneous objectio n requirement). Further, the exchange took place during Phase II of the trial , so it occur red too late to fall under the continuing objection exception. See Indiana Rules of Evidence 103(b) (“Once the court rules definitively on the record at trial a party need not renew an objection or offer of proof to preserve a claim of error for appeal

. ”) (emphasis added); Laird , 103 N.E.3d at 1176 ( h olding “[o]ur conclu sion [that the defendant did not preserve the issue for appeal] is not altered by the fact that [he] made a ‘ continuing ’ objection prior to the State ’ s closing argument. At that point, the evidence in question had already been presented to the jury, and it was too late to make a continuing objection”) , trans. denied

. Thus, w e do not believe McFarling’s “objection”

— to the extent it can be called that

— after the jury’s verdict falls within one of the exceptions to the requirement that objections be contemporaneous to preserve error for appeal

. McFarling did not object when evidence from the traffic stop was introduced, and she hasCourt of Appeals of Indiana | Memorandum Decision 20A

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therefore waived consideration of the issue of whether the police had reasonable suspicion to support the investigatory s top during which the evidence was procured.



# Conclusion

[17] Concluding that McFarling failed to preserve the admissibility of evidence issue because she did not contemporaneously object to the evidence as it was offered, we affirm.

[18] Affirmed

.

Crone, J., and Brown, J., concur

.