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.

ATTORNEY FOR APPELLANT : ATTORNEY S FOR APPELLEE : CARA SCHAEFER WIENEKE GREGORY F. ZOELLER Wieneke Law Office, LLC Attorney General of Indiana Plainfield, Indiana CHRISTINA D. PACE Deputy Attorney General Indianapolis, Indiana



## IN THE COURT OF APPEALS OF INDIANA

BENJAMIN T. HAINES , ) ) Appellant

- Defendant , ) ) vs. ) No. 90A02

- 1408

- CR

- 545 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff

. )

APPEAL FROM THE WELLS SUPERIOR COURT The Honorable Everett E. Goshorn , Judge Ca u se No. 90D01

- 1303

- F D

- 36

January 21, 2015

MEMORANDUM DECISION
- NOT FOR PUBLICATION
NAJAM, Judge2 STATEMENT OF THE CASE Benjamin T. Haines appeals his convictions for resisting law enforcement, as a Class D felony; reckless driving, as a Class B misdemeanor; and crimi nal mischief, as a Class B misdemeanor, following a jury trial. Haines presents three issues for our review, which we revise and consolidate into one issue, namely, whether the trial court
committed fundamental error when it admitted certain evidence at t rial.
We affirm.
FACTS AND PROCEDURAL HISTORY On the night of March 17, 2013, Deputy Russell Mounsey of the Wells County Sheriff’s Department parked his squad car at a church on State Road 218 to patrol for
traffic violations. At approximately 10:00 p.m ., Mounsey ’s radar clocked a vehicle traveling east on State Road 218 at ninety

- three miles per hour in a fifty

- five mile

- per
hour zone. Mounsey could not identify the make and model of the vehicle when it passed him, but, when he began his pursuit, he no ticed that it had distinctive taillights that “made [him] think of the newer Camaros or the newer Dodge Challengers.” Tr. at 24. Mounsey activated the lights and siren on his car during the pursuit

. Despite Mounsey reaching speeds of approximately one

- h undred miles per hour,
the speeding vehicle expanded its distance from Mounsey , and Mounsey lost track of the
vehicle on East County Road 1000 South between the intersections of South County
Road 250 East and State Road 1 , which are “about a mile and a qua rter” apart

. Id. at 29.
Around that time, however, Judith Herring observed a red vehicle rapidly approaching her home, which is located on State Road 1 about a quarter of a mile away from where3

Mounsey lost track of the vehicle . Herring believed that th e vehicle was headed for her driveway, or through her yard , so she went to her window to look. When she did, she could no longer see the vehicle. Also around this time on March 17, Jacob Sonnetag, a longtime friend of Haines,
received a late

- night phon e call from Haines, in which Haines explained to Sonnetag that “he was coming home from Indianapolis[,] . . . was going kind of fast[,] . . . lost control of the vehicle and went into a field[,] and needed some help.” Id. at 81. Haines told Sonnetag that he was walking on State Road 1 and asked Sonnetag to pick him up. Sonnetag agreed and picked Haines up on State Road 1 . Sonnetag took Haines to Jeffrey Moore’s apartment, and, while doing so, Haines explained to Sonnetag

t hat [,] basically [,] because he didn’t need another speeding ticket because[,] if he got another speeding ticket[,] he would lose his license

— that he had fled from the police. In doing so[,] his vehicle lost control[,] and it was in a field.
Tr. at 83. Haines stated that he had been driving a 2013 Camaro SS (“Camaro”)

. Moore was asleep when Haines arrived at his apartment. Haines woke Moore and
told him “that the car was stuck and he just needed help. [Haines] acted like somebody
else had [got the car stuck ,] like he was upse t that the car was stuck, ” but Haines did not say who had driven the vehicle. Id. at 94. Moore used his green Chevrolet Trailblazer (“Trailblazer”) to take Haines to the Camaro, which was stuck beside a barn on Herri n g’s property . Moore attempted to remove th e Camaro with his Trailblazer but , in the
process, got it stuck also

. Moore then called for a ride, and the two of them rode to Berne, where they both lived.4

On the morning of March 18 , Herring went to the same wi ndow where she had seen the car approach her property and saw Moore’s Trailblazer protruding from the
north side of her barn . Herring called the Sheriff’s Department. Id. at 37. Deputy Randy Steele of the Wells County Sheriff’s Department responded to Herring’s call. When he arrived, he found the Trailblazer and the Camaro stuck behind the barn. From the tracks
left by the vehicles in Herring’s yard, the Trailblazer appeared to have arrived subsequent to the Camaro, and the Trailblazer was positioned in such a way that looked as if it had

att empted to pull the Camaro from the soft ground. Only the T railblazer was visible from Herring’s window, and she did not know
that the Camaro was also behind her barn until Steele told her so

. But , when Herring
went outside to look at the Camaro , she re cognized it as the same vehicle that she had
seen the night before. She advised Steele that, the night before, she saw a police car go past her home shortly after “the Camaro had pulled into her driveway.” Tr. at 47. Deputy Steele then ran the incident reports from March 17 , discover ed a report from Deputy Mounsey regarding a vehicle that had failed to yield to him , and called Mounsey to inform him that he believed he had found the vehicle that Mounsey had pursued

. After receiving Steele’s call, Mounsey came to Herring’s home, and, when he arrived, he recognized the Camaro’s taillights. The two deputies had a wrecker service tow the two vehicles away from Herring’s property. The next day, pursuant to departmental policy, Mounsey conducted an inventory search of the Camaro and the
Trailblazer

. Although the department does not always collect items for evidence during inventory search es , Mounsey did so here in an attempt to determine the unknown identity5

of the Camaro’s driver. 1 Among ot her things, Mouns ey inventoried (1) a wallet, found
inside the Camaro’s driver’s

- side door compartment, that contained cards, identification,
and tax refu nd checks belonging to Haines; (2) a Hertz rental

- car agreement above the
visor ; (3) $2,232 in cash, found in the cent er console; and (4) $1,012, found in a plastic bag located under the Camaro’s front seat. Mounsey recorded all of the items onto an inventory list, and the trial court later admitted the items into evidence without objection.
The Wells Superior Court iss ued a warrant for Haines’ arrest , which Berne Police
Officer Jason Oswalt served at Haines ’ home on March 28

. While inside Haines ’ home
to serve the warrant , Oswalt observed a Chevrolet key fob , which was located inside of a jar of change. Oswalt found t he key fob significant because Mounsey previously had
informed Oswalt that he could not find the fob for the Camaro. Consequently, Oswalt took the key fob into eviden ce and provided it to Mounsey, who , in turn, used it at the imp ound lot to open and start the Camaro

. The trial court later admitted the key fob into
evidence without objection. The State charged Haines with resisting law enforcement, as a Class D felony; reckless driving, as a Class B misdemeanor; and criminal mischief, as a Class B
misde meanor. The State tried Haines by jury on June 10 and 11, 2014, after which he was convicted as charged. After a sentencing hearing, the trial court sentenced Haines to an aggregate, executed sentence of three years. This appeal ensued.

1 Initially, Mounsey collected only items believed to evince ownership of the Camaro

. Subsequently, however, it was determin ed that Haines had rented the Camaro from a rental company , and it needed to be returned to the rental company. As a result, the department col lected the remaining items in the vehicle

.6 DISCUSSION AND DECISION
Haines contends that the trial court erred when it admitted certain evidence , but he concedes that he failed to object at trial to the admission of this evidence, which is a prerequisite to preserving the issue for appellate review. T hus, to avo id waiver, Haines argues under the fundamental error doctrine. As we explained in Leslie v. State , 978 N.E.2d 486, 491 (Ind. Ct. App. 2012) (citations and quotation marks omitted), trans.
denied :
T he fundamental error doctrine is extremely narrow. To qua lify as fundamental error, an error must be so prejudicial to the rights of the defendant as to make a fair trial impossible. Further, the error must constitute a blatan t violation of basic principles[;] the harm, or potenti al for harm [,] must be substant ial[;] and the resulting error must deny the defend ant fundamental due process. Specifically, Haines argues that the trial court should have admitted neither the evidence seized from the Camaro nor the key fob because those items were collected pursuit t o unconstitutional search es in violation of the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution

. 2 Haines further asserts that the trial court also should not have admitted the money found in the Cam aro because it was irrelevant and prejudicial. We address each argument in turn. Inventory Search Haines contends that the inventory search of the Camaro by Deputy Mounsey was

an invalid , pretext ual search for criminal evidence. Further, Haines asserts that “the State did not link the act of rummaging through the contents of the wallet to any need for

2 Because Haines provides no separate authority or argument that the search violated the Indiana Constitution, his Art icle 1 , Section 11 claims are deemed waived. Fair v. State , 627 N.E.2d 427, 430 n.1 (Ind. 199 3) (citing St. John v. State , 523 N.E.2d 1353 (Ind. 1988)).7

inventorying [the] contents of the car.” Appellant’s Br. at 9. Thus, he reasons, the
evidence seized from the vehicle that identified him as its driver w as unconstitutionally
obtained . He argues, therefore, that it was fundamental error to admit this evidence and
its fruits because, without it, no evidence existed that tied him to the Camaro. We disagree and hold that , under a fundamental error analysis, the search of the Camaro was performed pursuant to a valid inventory search

. As our supreme court explained in Taylor v. State , 842 N.E.2d 327, 330

- 31 (Ind. 2006) (citations omitted): The Fourth Amendment protects persons from unreasonable search and se izure and this protection has been extended to the states through the Fourteenth Amendment. The fundamental purpose of the Fourth Amendment to the United States Constitution is to protect the legitimate expectations of privacy that citizens possess in the ir persons, their homes, and their belongings. For a search to be reasonable under the Fourth Amendment, a warrant is required unless an exception to the warrant requirement applies. The State bears the burden of proving that a warrantless search falls wi thin an exception to the warrant requirement. A valid inventory search is a well

- recognized exception to the warrant requirement. The underlyi ng rationale for the inventory exception is three

- fold: (1) protection of private property in police custody; (2) protection of police against claims of lost or stolen property; and (3) protection of police from possible danger.
Further: As in all Fourth Amendment jurisprudence, the test of constitutionality in inv entory cases is reasonableness. . . . In determ ining the reasonableness of an inventory search, courts must examine all the facts and circumstances of a case. This examination typically encompasses two overlapping sets of circumstances. First, the propriety of the impoundment must be established beca use the need for the inventory arises from the impoundment. Second, the scope of the inventory must be evaluated. Where either is clearly unreasonable, the search will not be upheld. In borderline cases, however, the ultimate character of the search is often most clearly revealed when8

both the necessitousness of the impoundment and the scrupulousness of the inventorying are viewed together.
Fair v. State , 627 N.E.2d 427, 431 (Ind. 1993) (citations omitted). Haines does not dispute the reasonableness o f the impoundment; he only disputes the scope of the inventory search. In Fair , our supreme court stated: [T] o pass constitutional muster, the search itself must be conducted pursuant to standard police procedures. The rule that standardized criteria or established routine must exist as a precondition to a valid inventory search is designed to ensure that the inventory is not a pretext for a general rummaging in order to d iscover incriminating evidence. In order to perform this function, the procedures m ust be rationally designed to meet the objectives that justify the search in the first place and must sufficiently limit the discretion of the officer in the field. Searches in conformity with such regulations are reasonable under the Fourth Amendment. T hus, to defeat a charge of pretext [,] the State must establish the existence of sufficient regulations and that the search at issue was conducted in conformity with them.
Id. , 627 N.E.2d at 435

. In analyzing the validity of an inventory search, the court in Fair looked at (1) whether the search was conducted at the impound lot or at the scene of the crime, (2) whether the officer who conducted the search was responsible for criminal investigations or impounded property, (3) whether formal inventory sheets were completed, and (4) whether the officer made note of the defendant’s personal affects or focused only on contraband. See id. , at 436. Here, Officer Mounsey testified that it was departmental policy to conduct inventory searches of every impounded ve hicle. He further testified that, while the department does not always collect inventoried property as evidence, it collect ed some of the property taken from the Camaro because that property provided evidence both of the Camaro’s ownership and of its driv er’s identity. Further evidence regarding the9

department’s procedures was not adduced at trial, b ut Haines neither objected nor moved to suppress the evidence based on inadequate procedures or a failure to comply with otherwise valid procedures.
Consid ering all of the facts and circumstances provided by the record, which
Haines could have developed further with an objection , we cannot say that the department’s procedures or Deputy Mounsey’s inventory search was so unreasonable that
Haines was denied a f air trial

. A lthough it appears that Mounsey was responsible for the criminal investigation of Haines , he conducted the search of the Camaro at the impound lot, completed a formal inventory sheet, and made note of all of Haines’ personal affects , both insi de and outside of Haines’ wallet

. See Fair , 627 N.E.2d at 436. Thus, it was not
fundamental error to admit the inventoried property from the Camaro , including that property found within Haines’ wallet, at Haines trial.
Plain View
Haines contends that th e seizure of the key fob violated his Fourth Amendment rights because the State’s proffered exception to the Fourth Amendment , the plain view doctrine, does not apply. The plain view doctrine is a well

- established exception to the
Fourth Amendment ’s warra nt requirement

. Tuggle v. State , 9 N.E.3d 726, 733 (Ind. Ct. App. 2014), trans. denied

. The plain view doctrine justifies a warrantless seizure when 1) the officer did not violate the Fourth Amendment in arriving at the place from which the evidence cou ld be plainly viewed; 2) the incriminating character of the evidence is immediately apparent; and 3) the officer has a lawful right of access to the object itself.
Id. at 734.10

Haines argues only that the plain view doctrine does not apply because the
cri minality of the key fob was not immediately apparent. 3 As we have previously explained:
The immediately apparent prong of the plain view doctrine requires that law enforcement officials have probable cause to believe the evidence will p rove useful in solv ing a crime. This does not mean that the officer must know that the item is evidence of criminal behavior. Probable cause requires only that the information available to the officer would lead a person of reasonable caution to believe the items could be useful as evidence of a crime. A practical, nontechnical probability that incriminating evidence is invol ved is all that is required. A lawfu l seizure must be based upon a nexus between the item seized and particular criminal behavior. The nexus must be one known to the officers at the time of the seizure and may not be based upon mere speculation. State v. Figgures , 839 N.E.2d 772, 779 (Ind. Ct. App. 2005) (citations and quotation marks omitted), trans. denied

. The seizure of the key fob satisfies th is test. Deputy Mounsey had informed Officer Oswalt, who served the arrest warrant, that he had not found the key fob for the Camaro, and the Camaro had several items inside of it that implicated Haines as the speeding driver. Thus, a nexus existed betwe en the key fob and the particular criminal
behavior

— resisting law enforcement , reckless driving, and criminal mischief

— and
Oswalt had probable cause to believe that the key fob would prove useful in solving a
crime

. In other words, t he information availab le to Oswalt would lead a person of
reasonable caution to believe that the key fob could be useful as evidence of a crime. The

3 Haines does not present an argument under the first or third prongs of the plain view doctrine. However, we note that Officer Oswalt’s presence in Haines’ home did not violate the Fourth Amend ment.

“ An arrest warrant founded on p robable cause gives the police ‘ limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within. ’ ” Duran v. State , 930 N.E.2d 10, 15 (Ind. 2010) (quoting Payton v. New York , 445 U.S. 573, 603 (1980)). Further, the object itself was in plain view of where Oswalt served the arrest warrant, and, therefore, Oswalt also had a lawful right to access the object itself.11

trial court, therefore, did not commit fundamental error when it admitted evidence regarding the key fob at Haines’ trial. Money
Haines additionally argues that the admission of evidence regarding the money found inside of the Camaro was fundamental error because , Fourth Amendment concerns aside, the money was irrelevant to the crimes charged and “highly prejudicial” because “[c]a sh in large quantities is often associated with drug dealers.” Appellant’s Br. at 13. The State responds that the money was relevant because it “made it more likely that [the Camaro] was the same vehicle Deputy Mounsey had been chasing the night before. An individual would not leave over $3000 in cash in his vehicle unless he was in a hurry to
exit the vehicle.” Appellee’s Br. at 18.
E ven if we assume that the money was irrelevant to Haines’ crimes and, therefore,
should not have been admitted at his trial , Haines was not denied fundamental due
process. In short, t he evidence against Haines was overwhelming. As a result, we cannot
state that the trial court committed fundamental error when it admitted evidence of the
money. Affirmed. MATHIAS, J., and BRADFORD, J., concur.