Derik Miller v. State of Indiana ( 2012 )

FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
Sep 21 2012, 9:15 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUZY ST. JOHN GREGORY F. ZOELLER
Marion County Public Defender Appellate Div. Attorney General of Indiana
Indianapolis, Indiana
IAN McLEAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DERIK MILLER, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1112-CR-1152
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Linda E. Brown, Judge
The Honorable Teresa A. Hall, Commissioner
Cause No. 49F10-1104-CM-29056
September 21, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
Derik Miller appeals his convictions of Class A misdemeanor possession of a handgun
without a license1 and Class A misdemeanor driving while suspended.2 He argues the trial
court should not have admitted the handgun found in the car he was driving and erred when it
listed his conviction of driving while suspended as a Class A misdemeanor instead of as an
infraction. We affirm in part and remand.
FACTS AND PROCEDURAL HISTORY
After midnight on April 26, 2011, Indianapolis police officer Christopher Chapman
stopped a vehicle with a disabled headlight. He approached Miller, who was the driver and
only occupant of the vehicle. Officer Chapman asked Miller for his license and registration
and asked if Miller had any weapons in the car. Officer Chapman testified Miller told him
“if there was anything in the vehicle, that it was not his.” (Tr. at 10.)
Based on Miller’s response regarding the weapons and Miller’s furtive movements in
the car, Officer Chapman requested a back up officer. Officer Chapman then checked
Miller’s driver’s license, discovered it was suspended, and placed Miller under arrest. While
he was handcuffing Miller, Officer Chapman noticed Miller was wearing an empty gun
holster on his belt. When Officer Chapman asked Miller why he was wearing the holster,
Miller replied, “you know how it is with uh, gun holsters in fashion.” (Id. at 18.) Officer
Chapman placed Miller in the back of his police car and “went to the car and verified that the
1
Ind. Code § 35-47-2-1.
2
Ind. Code § 9-24-19-2.
2
gun was in there, and I also located a single bullet in the center console area of the vehicle.”
(Id.)
Officer Christopher Frazier arrived at the scene. Officer Chapman indicated Miller’s
car was to be impounded and asked Officer Frazier to complete an inventory search of the
vehicle. Officer Frazier found a .45 caliber semiautomatic handgun, a magazine, and a live
round of ammunition. Miller indicated he did not have a license to carry the handgun.
The State charged Miller with Class A misdemeanor possessing a handgun without a
license and Class A misdemeanor driving while suspended. At the beginning of Miller’s
bench trial, the court and the parties agreed Count Two, driving while suspended, would be
an infraction3 instead of a misdemeanor. During direct examination of Officer Chapman,
Miller objected to the admission of the handgun found in the vehicle and argued the
inventory search was impermissible. The trial court overruled Miller’s objection and
admitted the handgun. It found Miller guilty on both counts.
DISCUSSION AND DECISION
1. Admission of Handgun
We review the trial court’s decision regarding admissibility of evidence for an abuse
of discretion. Lindsey v. State, 916 N.E.2d 230, 238 (Ind. Ct. App. 2009), trans. denied.
Thus, we will reverse only if the trial court’s decision is clearly against the logic and effect of
the facts and circumstances before it. Id. We will not reweigh evidence, and we consider
3
Ind. Code § 9-24-19-1.
3
any conflicting evidence in favor of the trial court’s ruling. Id. However, we must also
consider the uncontested evidence favorable to the defendant. Id.
Errors in the admission or exclusion of evidence are to be to be disregarded as
harmless unless they affect the substantial rights of a party. Ind. Trial Rule 61; Hardin v.
State, 611 N.E.2d 123, 131 (Ind. 1993). In a bench trial,
the harm from any evidentiary error is lessened. In bench trials, we presume
that the court disregarded inadmissible evidence and rendered its decision
solely on the basis of relevant and probative evidence. Any harm from
evidentiary error is lessened, if not completely annulled, when the trial is by
the court sitting without a jury. Also, any error in the admission of evidence
which is merely cumulative of evidence properly admitted is harmless.
Berry v. State, 725 N.E.2d 939, 943 (Ind. Ct. App. 2000) (internal citations omitted).
Miller argues the trial court abused its discretion when it admitted the handgun
because it was the fruit of an impermissible inventory search. He claims Officer Chapman’s
decision to impound the vehicle was improper and, had the ensuing inventory search not
occurred, the officers would not have discovered the handgun. We disagree.
Officer Chapman testified after he placed Miller under arrest for driving with a
suspended license, he “went to the car and verified that the gun was in there, and I also
located a single bullet in the center console area of the vehicle.” (Tr. at 18.) He testified
Officer Frazier conducted an inventory search of the vehicle prior to impoundment and found
the same gun. Therefore, we need not decide the validity of the inventory search because
there exists independent evidence of the gun’s presence, and Miller does not challenge the
admission of the gun based on its discovery as part of a pre-inventory search. See Lafayette
4
v. State, 917 N.E.2d 660, 666 (Ind. 2009) (improper admission of evidence is harmless when
the conviction is supported by such substantial independent evidence of guilt that there is no
substantial likelihood that the questioned evidence contributed to the conviction).
2. Driving while Suspended Conviction
Miller argues, and the State concedes, the Abstract of Judgment erroneously lists
Miller’s conviction of driving while suspended as a Class A misdemeanor instead of as an
infraction, which it should be pursuant to the court and parties’ agreement before trial.
Therefore, we remand to the trial court for correction of the abstract of judgment to
accurately reflect the conviction of driving while suspended as an infraction.
CONCLUSION
Any error in the admission of the handgun during the discussion of the inventory
search was harmless. However, the trial court erred when it listed Miller’s conviction of
driving while suspended as a Class A misdemeanor, as the court and parties agreed the crime
was an infraction. Accordingly, we affirm the judgment but remand for correction of the
Abstract of Judgment to reflect Miller’s conviction of driving while suspended is an
infraction.
Affirmed in part and remanded.
NAJAM, J., and KIRSCH, J., concur.
5