Douglas Alan Burris v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Dec 28 2017, 6:01 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
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
Monika Prekopa Talbot
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Douglas Alan Burris, December 28, 2017
Appellant-Defendant, Court of Appeals Case No.
22A05-1704-CR-809
v. Appeal from the Floyd Superior
Court
State of Indiana, The Honorable Maria D. Granger,
Appellee-Plaintiff. Judge
Trial Court Cause Nos.
22D03-1605-F5-1170
22D03-1610-F6-2190
Robb, Judge.
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Case Summary and Issues
[1] Following a jury trial, Douglas Burris was convicted of possession of chemical
reagents or precursors with intent to manufacture a controlled substance, a
Level 6 felony; visiting a common nuisance, a Class B misdemeanor; possession
of methamphetamine, a Level 6 felony; resisting law enforcement, a Class A
misdemeanor; false informing, a Class B misdemeanor; and possession of
paraphernalia, a Class C misdemeanor. Burris appeals his conviction, raising
several issues for our review, which we consolidate and restate as: 1) whether
the trial court committed fundamental error in admitting certain evidence; and
2) whether the trial court’s sentencing statement contains a clerical error.
Concluding the trial court did not commit fundamental error, but that the trial
court’s written sentencing statement contains a clerical error, we affirm Burris’
convictions and remand to the trial court to correct the sentencing statement.
Facts and Procedural History
[2] On May 28, 2016, Floyd County Deputy Sheriff Brian Case initiated a traffic
stop of a vehicle driven by Christopher Dowdle. Burris was a passenger in the
vehicle. Because there was an active warrant for Dowdle’s arrest, Officer Case
immediately placed Dowdle under arrest. Shortly thereafter, Officer Theodore
Comer, Sr., from the Georgetown Police Department arrived at the scene to
assist Officer Case.
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[3] Following Dowdle’s arrest, the officers conducted an inventory search of the
vehicle and found narcotics and precursors to the manufacture of
methamphetamine. Specifically, the officers found heroin, methamphetamine,
marijuana, ecstasy, and paraphernalia including plastic bottles, forty-seven
pseudoephedrine pills, a glass jar, clear plastic tubing, plastic bags, lithium
batteries, and lighter fluid. Burris admitted the pseudoephedrine pills belonged
to him. Burris was arrested and subsequently released after posting bond.
[4] The State charged Burris, under cause number 22D03-1605-F5-001170 (“Cause
1170”), with dealing in methamphetamine, a Level 5 felony; possession of a
narcotic drug, a Level 6 felony; possession of chemical reagents or precursors
with intent to manufacture a controlled substance, a Level 6 felony; possession
of paraphernalia, a Class C misdemeanor; possession of marijuana, a Class B
misdemeanor; and visiting a common nuisance, a Class B misdemeanor.
[5] On October 18, 2016, Officers Eric May and Lynn Darensbourg of the New
Albany Police Department were dispatched to investigate a suspicious person.
When the officers arrived at the residence, there was a black Ford Ranger
parked next to the house. They discovered the Ford Ranger belonged to Burris.
The officers also observed a man, later identified as Burris, walking away from
the home. When speaking with officers, Burris identified himself as “Daniel M.
Edsell” and told the officers that a friend had dropped him off before denying
the Ford Ranger belonged to him. Doubting his story, Officer May searched
the Ford Ranger and found a cell phone that contained photos of Burris. Burris
then admitted his true identity. Shortly thereafter, while speaking with the
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officers, Burris kicked off his flip flops and attempted to flee, but the officers
apprehended him following a fifteen-minute pursuit.
[6] A search of Burris’ Ford Ranger revealed a bong with green liquid inside, a
straw used to snort drugs, a bag containing a white substance, and a bag
containing methamphetamine. The bag containing methamphetamine was
found inside a wallet. The wallet also contained the driver’s license of Daniel
Edsell.
[7] The State charged Burris, under cause number 22D03-1610-F6-002190 (“Cause
2190”), with possession of methamphetamine, a Level 6 felony; resisting law
enforcement, a Class A misdemeanor; false informing, a Class B misdemeanor;
and possession of paraphernalia, a Class C misdemeanor.
[8] In December of 2016, Burris and the State agreed to consolidate Cause 1170
and Cause 2190 for trial. At trial, due to the availability of witnesses, the State
presented the cases in reverse chronological order, with the October 2016 case
being presented before the May 2016 case. When Officer Comer was asked
why he decided to come to the traffic stop to assist Officer Case, he testified he
had “previous knowledge” of Dowdle and Burris and thought he could assist
Officer Case. Transcript, Volume II at 180, 182, 184. Burris did not object to
Officer Comer’s testimony. In addition, during defense counsel’s cross-
examination of Officer Case, defense counsel inquired about Dowdle and asked
if any other officers had “experiences with Mr. Dowdle[?]” Id. at 237. Officer
Case responded, “I was also told by other officers that they’ve had experiences
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with Mr. Burris also.” Id. Following this response, Burris moved for a mistrial.
The trial court denied Burris’ motion for a mistrial but admonished the jury
they were to disregard Officer Case’s statement.
[9] For the charges filed under Cause 1170, the jury found Burris guilty of
possession of chemical reagents or precursors with intent to manufacture a
controlled substance and visiting a common nuisance. Under Cause 2190, the
jury found Burris guilty of possession of methamphetamine, resisting law
enforcement, false informing, and possession of paraphernalia. The trial court
orally sentenced Burris to 900 days in the Indiana Department of Correction
(“DOC”) for possession of chemical reagents or precursors and 180 days for
visiting a common nuisance. The sentences under Cause 1170 were to run
concurrent to each other and consecutive to the sentences under Cause 2190.
Under Cause 2190, the trial court sentenced Burris to 900 days in the DOC for
possession of methamphetamine, 360 days for resisting law enforcement, 180
days for false informing, and sixty days for possession of paraphernalia. The
trial court ordered Burris’ sentence for resisting law enforcement to run
consecutively to his sentence for possession of methamphetamine but
concurrently with his remaining offenses of false informing and possession of
paraphernalia. The trial court stated Burris’ total sentence is 2160 days in the
DOC. See Tr., Vol. III at 99. Burris now appeals.
Discussion and Decision
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I. Admission of Evidence
[10] Burris first argues the trial court abused its discretion in admitting evidence of
Burris’ character and criminal history. A trial court has broad discretion in
ruling on evidentiary admissions. Erickson v. State, 72 N.E.3d 965, 969 (Ind. Ct.
App. 2017), trans. denied. We review its rulings for abuse of discretion, which
occurs when its decision was clearly against the logic and effects of the facts and
circumstances. Id.
[11] Burris alleges the State elicited a “drumbeat repetition” of character evidence
and criminal history which should have been excluded pursuant to Indiana
Rule of Evidence 404.1 Brief of Appellant at 22. Specifically, Burris alleges
Officer Case and Officer Comer offered unsolicited comments suggesting they
had previous encounters with Burris that amounted to character evidence and
1
Indiana Rule of Evidence 404 provides:
(a) Character Evidence.
(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to
prove that on a particular occasion the person acted in accordance with the character or
trait.
***
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. 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.
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criminal history. Burris complains of the following testimony from Officer
Comer and Officer Case:
[State]: [Y]ou were familiar with these two (2)
subjects?
[Officer Comer]: Yes.
[State]: Okay. And you had some information that
you thought would be helpful in this
investigation?
[Officer Comer]: Yes. I had knowledge of . . . knowledge and
information on both subjects.
[State]: [O]nce you were . . . at the scene, what did
you observe?
[Officer Comer]: I observed the two (2) subjects that I have
previous knowledge of were at the scene and
they were both detained.
***
[State]: [I]n your assisting capacity there . . . did you
observe anything else that you believe would
be relevant to the jury?
[Officer Comer]: [O]ther than the—the methamphetamine and
the prior knowledge that these subjects might
have had . . . these items in their possession,
no.
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***
[Defense]: Were you requested to be there or did you
just hear about it and decided to show up on
your own?
[Officer Comer]: I showed up on my own for the . . . mere fact
that because I had the prior information
about these two subjects.
Tr., Vol. II at 180-84.
[Defense]: [W]as this [Dowdle’s] first rodeo [with law
enforcement]?
[Officer Case]: This was my first experience with Mr.
Dowdle . . . besides what other officers had
told me.
[Defense]: But other officers had many experiences with
Mr. Dowdle, correct?
[Officer Case]: And I was also told by other officers that
they’ve had experiences with Mr. Burris also.
Id. at 237.
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[12] First, we note following Officer Case’s testimony, Burris immediately moved
for a mistrial and requested the trial court admonish the jury.2 Although the
trial court denied his motion for a mistrial, it did admonish the jury, stating,
[M]embers of the jury . . . the Court is striking the last response .
. . of Officer [Case] . . . as it pertains . . . to any dealings
involving [Burris]. [T]he Court is admonishing you . . . to
disregard that response that has been stricken and to give it no
further consideration.
[13] Id. at 239. This court may presume a timely and accurate admonishment by the
trial court will cure any defect in the admission of evidence. Green v. State, 587
N.E.2d 1314, 1317 (Ind. 1992). Burris has not offered any valid reasons3 why
this admonishment was insufficient, and we conclude the trial court’s
admonishment to the jury cured any possible error in Burris’ question and
Officer Case’s answer.
[14] Second, Burris did not object to any of Officer Comer’s testimony.
Consequently, he has waived this issue for appeal unless fundamental error has
occurred. Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013). Anticipating his
waiver of the issue, Burris alleges the trial court committed fundamental error
2
The State argues Burris has waived this argument because he did not object. However, Burris’ immediate
motion for mistrial and request for an admonishment are sufficient to preserve this issue for appeal.
3
Burris alleges the admonishment was insufficient because the trial court failed to also admonish the jury
regarding Officer Comer’s statements; however, as we discuss below, Burris did not object during Officer
Comer’s testimony.
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in admitting this evidence. We disagree, and conclude the admission of this
evidence does not constitute fundamental error.
[15] Fundamental error is an extremely narrow exception to waiver that applies only
when the error amounts to a blatant violation of basic principles, the harm or
potential for harm is substantial, and the resulting error denies the defendant
fundamental due process. Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006).
The claimed error must be so prejudicial to the rights of a defendant as to make
a fair trial impossible. Taylor v. State, 717 N.E.2d 90, 93-94 (Ind. 1999).
[16] Burris equates his case to Oldham v. State, 779 N.E.2d 1162 (Ind. Ct. App.
2002), trans. denied. There, the defendant was convicted of murder and carrying
a handgun without a license. At trial, the State introduced business cards and
photos of the defendant with text reading, “‘America’s Most Wanted,’ ‘Wanted
for: robbery, assault, arson, jaywalking,’ ‘Considered armed and dangerous,’
and ‘Approach with extreme caution.’” Id. at 1171. The defendant asserted the
admission of that evidence was fundamental error that prejudiced the jury
against him.
[17] On appeal, we determined the State used the photographs to suggest the
defendant was dangerous. Because the manner in which the State introduced
the evidence suggested the defendant had the characteristics of one who would
have guns and kill another person, its introduction would require the defendant
to refute not only the charged crimes but also the character evidence. Id. at
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1173. As such, we concluded the admission of the evidence was fundamental
error. Id. at 1174.
[18] Burris’ comparison of his case to Oldham is inapposite. As we stated in that
case, the State’s evidence sought “to paint [the defendant] as a dangerous
criminal” and “was obviously inadmissible” under Indiana Rule of Evidence
404. Oldham, 779 N.E.2d at 1172. Here, the trial court issued a timely
admonishment following Officer Case’s unsolicited comment and Officer
Comer’s comments he had “prior information” or “previous knowledge” of
Dowdle and Burris were vague, innocuous, and used to explain why he assisted
with the traffic stop. Tr., Vol. II at 180-82. Although these comments also may
have been properly excluded upon objection or warranted an admonishment to
the jury, any error does not rise to the level of fundamental error. See Taylor v.
State, 86 N.E.3d 157, 161-63 (Ind. 2017) (holding no fundamental error
occurred despite the State repeatedly referring to a defendant accused of murder
by his nickname, “Looney the Shooter”). Moreover, by the time Officer Comer
testified, the jury had already heard the State’s presentation of Cause 2190,
which included overwhelming evidence Burris had an encounter with police
officers, lied to those officers, fled from them, and had narcotics in his vehicle.
Presumably, these comments did not cause the jury to infer a criminal character
any more than the fact they had just heard overwhelming evidence of his
October encounter with the police. We conclude admission of this testimony
did not deny Burris due process and therefore does not rise to the level of
fundamental error.
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II. Burris’ Sentence
[19] Burris also alleges the trial court’s written sentencing statement for Cause 2190
contains a clerical error. Specifically, Burris notes the written sentencing
statement orders Burris’ sentences for possession of methamphetamine,
resisting law enforcement, and false informing to run consecutively to each
other, contrary to the trial court’s oral pronouncement. The State concedes,
and we agree, this written sentencing statement contains an error.
[20] When oral and written sentencing statements conflict, we examine them
together to discern the intent of the sentencing court. Skipworth v. State, 68
N.E.3d 589, 593 (Ind. Ct. App. 2017). We may remand the case for correction
of clerical errors if the trial court’s intent is unambiguous. Id.
[21] At the sentencing hearing, the trial court stated,
[F]or the Possession of Methamphetamine . . . I’m gonna (sic)
order nine hundred (900) days . . . . [F]or the Resisting Law
Enforcement . . . I’m gonna (sic) order three hundred and sixty
(360) days. It will run consecutive to . . . the Possession of
Methamphetamine . . . so that would make a total one thousand
two hundred and sixty (1260) day sentence. For the False
Informing, a hundred and eighty (180) days and Possession of
Paraphernalia, sixty (60) days. I will run those concurrent to
each other and to the Resisting Law Enforcement offense . . . .
[T]hat amounts to a total between the two (2) cases [Cause 1170
and Cause 2190] of two thousand one hundred and sixty (2160)
days.
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Tr., Vol. III at 99. As noted by the parties, the written sentencing statement for
Cause 2190 orders Burris’ sentences for possession of methamphetamine,
resisting law enforcement, and false informing to run consecutively to each
other.
[22] The trial court’s oral sentencing statement unambiguously evinces its intent for
Burris to serve a total of 2160 days in the DOC, with his sentences under Cause
1170 and Cause 2190 to be served consecutively. If the written sentencing
statement was correct, Burris would serve a total of 2340 days in the DOC.
Thus, we conclude the trial court’s written sentencing statement contains a
clerical error and we remand to the trial court to correct the error and order
Burris’ sentence for false informing to run concurrently with his sentences for
resisting law enforcement and possession of paraphernalia.
Conclusion
[23] We conclude any error in the admission of evidence does not rise to the level of
fundamental error. However, the trial court’s written sentencing statement
contains a clerical error and we remand to the trial court to correct that error.
[24] Affirmed and remanded.
Riley, J., and Pyle, J., concur.
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