Beverly Louise Cratty v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Sep 28 2018, 11:16 am
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
Talisha R. Griffin Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Appellate Division
Laura R. Anderson
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Beverly Louise Cratty, September 28, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-937
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Amy M. Jones,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G08-1704-CM-14566
Bailey, Judge.
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Case Summary
[1] Following a bench trial, Beverly Louise Cratty (“Cratty”) was convicted of two
counts related to contraband found during a warrantless inventory search of a
vehicle in her possession. At trial, the State asserted that it had charged one of
the counts—Possession of Marijuana—as a Class A misdemeanor.1 However,
the trial court observed that it did not “have charging information . . . that
shows that,” and stated that it would enter Count I as a Class B misdemeanor.
Tr. Vol. II at 58. The court later entered a written order identifying Count I as
a Class A misdemeanor; the order otherwise accurately identifies Count II as a
conviction for Possession of Paraphernalia, as a Class C Misdemeanor.2
[2] Cratty now appeals, challenging the admission of evidence obtained during the
inventory search. Determining that Cratty waived this argument by failing to
contemporaneously object on this basis—and that the record does not reveal
fundamental error—we affirm the convictions. However, having sua sponte
identified inconsistency between the trial court’s oral and written classification
of Count I, we remand for correction of this inconsistency.
1
Compare Ind. Code § 35-48-4-11(a)(1) (criminalizing the possession of marijuana and generally classifying
the offense as a Class B misdemeanor) with I.C. § 35-48-4-11(b) (elevating the offense to a Class A
misdemeanor if “the person has a prior conviction for a drug offense”).
2
I.C. § 35-48-4-8.3(b)(1).
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Facts and Procedural History
[3] On April 16, 2017, Cratty called the police for help retrieving belongings that
were locked inside a caregiver’s apartment. Officer Andrew Emmel (“Officer
Emmel”) with the Indianapolis Metropolitan Police Department arrived and
knocked on the apartment door.3 No one answered, and Officer Emmel told
Cratty that there was nothing he could do. Officer Emmel then asked if Cratty
had a vehicle or a way to leave, and Cratty said no. Shortly thereafter, Officer
Emmel saw Cratty enter a vehicle that had no other occupants. Officer Emmel
ran the license plate and learned that the vehicle had been reported stolen.
[4] After running the license plate, Officer Emmel handcuffed Cratty and gave her
a Miranda warning.4 During ensuing questioning, Cratty said that she borrowed
the vehicle from a relative. Officer Emmel was unsuccessful in his attempt to
contact the owner of the vehicle, and he decided to have the vehicle towed. In
the meantime, Officer Emmel began conducting a warrantless inventory search.
Inside the vehicle, Officer Emmel found a purse containing items that he
believed were a marijuana pipe, a crack pipe, and a baggie of ground-up
marijuana. Officer Emmel asked Cratty if she smoked marijuana or crack, and
Cratty “said that she smokes marijuana.” Tr. Vol. II at 16.
3
Officer Emmel did not testify as to his first name, but the parties appear to agree that his name is Andrew.
4
See Miranda v. Arizona, 384 U.S. 436 (1966).
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[5] The State charged Cratty with one count of Possession of Marijuana and one
count of Possession of Paraphernalia. A bench trial was held in March 2018,
during which Cratty did not object to Officer Emmel’s testimony describing the
items that he believed to be contraband. Later, the State sought to admit
Exhibit 1—consisting of the actual contraband—and Cratty objected only on
foundational grounds. The court then admitted the evidence over Cratty’s
objection, noting that the evidence “would be admitted as that these items were
found in a purse that belonged to [Cratty] in the car,” but that the court had not
yet seen any laboratory reports. Id. After Officer Emmel had testified, and
prior to anticipated testimony from a laboratory analyst, Cratty orally moved to
suppress evidence obtained from the search. Cratty argued, inter alia, that the
inventory search offended her constitutional rights. The trial court denied the
motion. The State later sought to admit a laboratory report indicating that
there was cocaine residue in one of the pipes and marijuana in the baggie. The
trial court admitted the report without objection from Cratty.
[6] After an initial phase of trial, the court found Cratty guilty of Possession of
Marijuana and Possession of Paraphernalia. The State informed the court that
it “had a part two as to count one,” at which point Cratty indicated that she
would stipulate “as to the prior conviction.” Id. at 57. The court and the
parties attempted to locate an additional charging information, which the State
eventually conceded that it could not find. The court then remarked: “Well, at
this point then I understand that the parties would stipulate to that, but I don’t
have charging information for the Court that shows that. So it will be entered
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as a b [sic] misdemeanor.” Id. at 58. The trial court then imposed an aggregate
sentence of 180 days with 178 days suspended. That same day, the trial court
entered a written order identifying Count I as a Class A misdemeanor.
[7] Cratty now appeals.
Discussion and Decision
[8] Cratty argues that the trial court erred in admitting evidence obtained from the
inventory search. She asserts that the search was unconstitutional under federal
and state principles, arguing—inter alia—that there was no evidence that the
warrantless search complied with department policy. However, Cratty failed to
contemporaneously object on this basis, resulting in waiver of the issue on
appeal. See, e.g., Delarosa v. State, 938 N.E.2d 690, 694 (Ind. 2010) (recognizing
the general rule that “[a] failure to object when the evidence is introduced at
trial waives the issue for appeal”). In arguing that she preserved this issue,
Cratty points out that she objected—on foundational grounds—when the State
sought to admit the actual contraband. Yet, a contemporaneous “objection on
grounds other than those raised on appeal . . . is ineffective,” Raess v. Doescher,
883 N.E.2d 790, 797 (Ind. 2008), and Cratty’s subsequent constitutional
argument—presented after the evidence had been admitted—was untimely.
[9] Having failed to preserve the issue at trial, Cratty may obtain relief only upon
fundamental error. See Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). This
“exception is ‘extremely narrow, and applies only when the error constitutes a
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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)).
Indeed, “[t]he error claimed must either make a fair trial impossible or
constitute clearly blatant violations of basic and elementary principles of due
process.” Id. (quotation marks omitted).
[10] Cratty does not argue fundamental error, and instead asks that we look past
waiver and “address her case on the merits.” Reply Br. of Appellant at 6.
However, as the record does not support application of the fundamental-error
exception, we decline this request and affirm the convictions. We nonetheless
proceed to address the issue identified sua sponte, which is the inconsistent
classification of Count I. That is, although the trial court orally stated that it
was entering judgment as a Class B misdemeanor, its written order shows that
Cratty was convicted of a Class A misdemeanor. See App. Vol. II at 14
(identifying Count I as “35-48-4-11(a)(1)/MA: Possession of Marijuana”). We
remand for correction of this inconsistency.
[11] Affirmed and remanded.
Mathias, J., and Bradford, J., concur.
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