Daniel Smith v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Jul 09 2015, 5:40 am
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 ATTORNEYS FOR APPELLEE
Ryan P. Dillon Gregory F. Zoeller
Dillon Legal Group, P.C. Attorney General of Indiana
Franklin, Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Daniel Smith, July 9, 2015
Appellant-Defendant, Court of Appeals Case No.
07A01-1411-CR-485
v. Appeal from the Brown Circuit
Court
Cause Nos. 07C01-1207-CM-251,
State of Indiana, 07C01-1308-CM-292
Appellee-Plaintiff The Honorable Judith A. Stewart,
Judge
Bailey, Judge.
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Case Summary
[1] Daniel Smith (“Smith”) appeals his convictions for two counts of Violating
Orders to Vacate a Condemned Dwelling, Class B misdemeanors. 1 We affirm.
Issues
[2] Smith presents two issues for review:
I. Whether he was denied the right to present a meaningful
defense; and
II. Whether fundamental error in the admission of evidence denied
Smith a fair trial.
Facts and Procedural History
[3] In 2004, Smith purchased property in Nashville, Indiana, formerly occupied by
the local American Legion chapter (“the Property”). On January 4, 2012, the
Brown County Health Officer issued an Order to Vacate the Property, which
apparently lacked a septic system appropriate for residential use. Copies of the
order were left at the Property on that date. The following day, a copy was
personally delivered to Smith. The order was not appealed.
[4] In February and April of 2012, Brown County Health Department employee
April Reeves (“Reeves”) visited the Property to record electric meter readings
1
Ind. Code §§ 16-41-20-4, 16-41-20-13.
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and make observations relative to use of the Property. On April 13, 2012,
Brown County Sheriff’s Deputy Michael Moore visited the Property, where he
observed a posted condemnation notice. Deputy Moore also encountered
Smith, who reported living on a boat parked at the Property.
[5] On July 17, 2012, the State filed a four-count Information in Cause No. 07C01-
1207-CM-251, charging that Smith had failed to vacate a condemned dwelling
on or about February 1, 2012, March 1, 2012, April 1, 2012, and April 13,
2012.
[6] On July 18, 2013, Brown County Sheriff’s deputies executed a search warrant
at the Property. The search yielded recent mail, fresh groceries, and
rudimentary water drainage components. On August 19, 2013, the State filed
an Information in Cause No. 07C01-1308-CM-292, alleging that Smith had
failed to vacate a condemned dwelling on or about July 18, 2013.
[7] On February 14, 2013, the Prosecutor filed a Motion in Limine, seeking to
prevent Smith from introducing evidence to challenge the validity of the Order
to Vacate. The State also moved to join the separate causes. At a hearing
conducted on March 21, 2014, Smith argued that the local health department
lacked jurisdiction to issue an order concerning a commercial building. The
Prosecutor pointed out that the Order to Vacate had not been challenged in an
administrative appeal. At the conclusion of the hearing, the trial court
consolidated the charges for trial and requested the submission of briefs on the
admissibility of evidence as to the validity of the Order to Vacate.
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[8] On April 15, 2014, the trial court issued an order regarding the Motion in
Limine. In relevant part, the order provided: “[Smith] cannot use this criminal
proceeding as a per se challenge to the validity of the health officer’s Order to
Vacate.” (App. 61.) The order further provided:
the Court also finds that an order in limine prohibiting any reference to
the validity of the Order to Vacate may be too broad and may prohibit
relevant evidence of mens rea at the time of the alleged offenses, such
as an explanation of why the defendant continued to live at the
location, if he did.
(App. 62.) Accordingly, Smith was to be afforded the opportunity to request an
additional hearing at trial, outside the presence of the jury, should he seek to
offer evidence of invalidity of the Order to Vacate relative to his criminal intent.
On August 13, 2014, the parties convened for a pre-trial hearing and the trial
court clarified that there remained “a big gray area on the culpability” and the
trial court would “have to hear the testimony.” (Tr. 19-20).
[9] On August 13, 2014, Smith was brought to trial before a jury. He was acquitted
of three charges and convicted of two -- with respect to the dates of April 13,
2012 and July 18, 2013. Smith was sentenced to an aggregate term of forty
days imprisonment, all suspended. This appeal ensued.
Discussion and Decision
Right to Present Defense
[10] Indiana Code Section 16-41-20-13(a) provides that a person who “recklessly
violates or fails to comply” with the statutory chapter on Unfit Dwellings
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commits a Class B misdemeanor. Smith contends that the trial court denied
him a meaningful opportunity to present a defense by excluding evidence of the
invalidity of the Order to Vacate. He concedes that he did not comply with
Indiana Code Section 16-41-20-9(a), which provides:
A person aggrieved by an order of a local board of health or county
health officer issued under this chapter may, not more than ten (10)
days after the making of the order, file with the circuit or superior
court a petition seeking a review of the order.
[11] However, according to Smith, “without evidence of State approved rules and
regulations regarding the enforcement of septic systems, the Order stands
invalid and unable to be enforced.” (Appellant’s Br. at 8.) He also observes
that the Property was identified in county records as commercial property, and
suggests that local county health officers may act only with respect to personal
residences. In essence, Smith asserts that he should have been permitted to
collaterally attack the Order to Vacate, although he failed to perfect a timely
appeal to challenge its validity.
[12] A trial court exercises broad discretion in ruling on the admissibility of
evidence, and an appellate court should disturb its ruling only where it is shown
that the court abused its discretion. Camm v. State, 908 N.E.2d 215, 225 (Ind.
2009). Generally, the admission or exclusion of evidence will not result in a
reversal on appeal absent a manifest abuse of discretion that results in the denial
of a fair trial. Dorsey v. State, 802 N.E.2d 991, 993 (Ind. Ct. App. 2004).
[13] “The right to present a defense is a fundamental element of due process of law”
and a defendant has a right to present relevant evidence offered to challenge the
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charges against him. Manigault v. State, 881 N.E.2d 679, 690 (Ind. Ct. App.
2008). A defendant’s right to present a defense includes the right to present his
or her version of the facts. Parker v. State, 965 N.E.2d 50, 53 (Ind. Ct. App.
2012). Although this right is of the utmost importance, it is not absolute. Id.[14] Pursuant to Indiana Code Section 16-41-20-13(a), the State was required to
establish that Smith had violated an order issued under the Unsafe Dwellings
chapter and that he had acted recklessly. The elements of the charged offense
to be established beyond a reasonable doubt did not include validity of the
underlying order.
[15] Smith was placed in a position of defending against the State’s allegations that
he had recklessly violated an order that he vacate a condemned dwelling.
Smith testified at his trial, conceding that he had seen the Notice to Vacate and
that he had not filed a petition for review. However, he claimed that his
property had been condemned “for no reason” and he had “not figured out
why.” (Tr. 173, 188.) In an offer to prove, Smith testified that the Property was
zoned commercial, he had an operating septic system, and he had been treated
unfairly. His offer of proof, if credited, did not directly call into question the
validity of the Order to Vacate. Regardless, defects in the Order to Vacate do
provide a defense to the offense with which Smith was charged.
[16] To the extent that Smith desired to collaterally attack the Order to Vacate, it is
undisputed that he failed to challenge its validity by a timely appeal. The State
was not required to independently establish its validity. Smith’s offer of proof
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did not demonstrate its invalidity. To the extent that Smith desired to present
evidence of his state of mind, personal beliefs, or mens rea, he was not denied
the right to do so. Smith has not demonstrated that he was deprived of a
meaningful opportunity to present a complete defense.
Admission of Evidence
[17] Without objection from Smith, 2 the State offered into evidence State’s Exhibit
7, the Information filed in cause number 07-C01-1207-CM-251. Smith now
asserts that the four-count allegations have negative implications regarding
Smith’s character and violate Ind. Evidence Rule 404(b), which provides in
relevant part:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith.
It may, however, be admissible for other purposes, such as proof of
motive, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident[.]
[18] The defendant’s failure to lodge a contemporaneous objection at the time
evidence is introduced at trial results in waiver of the error on appeal. Brown v.
State, 929 N.E.2d 204, 207 (Ind. 2010). “The purpose of this rule is to allow the
trial judge to consider the issue in light of any fresh developments and also to
correct any errors.” Id. A claim that has been thus waived can be reviewed on
appeal if the reviewing court determines that a fundamental error occurred. Id.The fundamental error exception is ‘“extremely narrow, and applies only when
2
Smith’s counsel stated that he had “no objection.” (Tr. 70.)
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the error constitutes a blatant violation of basic principles, the harm or potential
for harm is substantial, and the resulting error denies the defendant
fundamental due process.’” Id. (quoting Mathews v. State, 849 N.E.2d 578, 587
(Ind. 2006)). The exception is available only in ‘“egregious circumstances.”’
Id. (quoting Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003)).
[19] The rationale for the prohibition against bad act and character evidence is that
the jury is precluded from making the forbidden inference that the defendant
had a criminal propensity and therefore engaged in the charged conduct.
Monegan v. State, 721 N.E.2d 243, 248 (Ind. 1999). However, “the rule does not
bar evidence of uncharged acts that are ‘intrinsic’ to the charged offense.”
Wages v. State, 863 N.E.2d 408, 411 (Ind. Ct. App. 2007). Acts are “intrinsic” if
they occur at the same time and under the same circumstances as the crimes
charged. Id.[20] State’s Exhibit 7 did not reference extrinsic conduct. Indeed, it reflected
charged conduct. 3 The exhibit consisted of the Information alleging that Smith
failed to vacate his condemned dwelling on four occasions in February, March,
and April of 2012. The same Information was read to the jury as part of their
preliminary instructions; its subsequent admission was cumulative. The trial
3
Smith acknowledges this in his Reply Brief, stating: “Had the cases not been joined for purposes of trial,
Trial Exhibit 7 would have been evidence of uncharged conduct and would not have been able to be
permitted.” (Reply Br. at 4.)
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court did not admit evidence of “other crimes, wrongs, or acts.” Evid. R.
404(b). Smith has failed to demonstrate fundamental error.
Conclusion
[21] Smith was not denied the opportunity to present a meaningful defense. Nor did
fundamental error deprive him of a fair trial.
[22] Affirmed.
Riley, J., and Barnes, J., concur.
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