Opinion
23A-CR-1435
05-31-2024
Burke W. Baughman, Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Andrew Bernlohr Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Jesse R. Drum Assistant Section Chief, Criminal Appeals Indianapolis, IN
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Allen Superior Court The Honorable Steven O. Godfrey, Judge Trial Court Cause No. 02D04-2103-F2-9
ATTORNEY FOR APPELLANT Andrew Bernlohr Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Jesse R. Drum Assistant Section Chief, Criminal Appeals Indianapolis, IN
MEMORANDUM DECISION
BROWN, JUDGE.
[¶1] Burke W. Baughman, Jr., appeals his convictions for dealing in methamphetamine as a level 2 felony and dealing in cocaine or narcotic drug as a level 4 felony. He asserts the trial court erred in denying his motions pursuant to Ind. Criminal Rule 4 and abused its discretion in admitting certain evidence. We affirm.
Facts and Procedural History
[¶2] On February 12, 2021, Fort Wayne Police Officer Miguel Rivera was dispatched to a medical emergency involving an unconscious subject. Fort Wayne Police Officer Ross McGillivray also received a dispatch that Ashley Michael called to report a possible overdose victim in the residence. When Officer Rivera arrived, he noticed the odor of marijuana before entering the residence. The front door was open, and an elderly woman pointed downstairs. Officer Rivera went downstairs to the basement where the odor was stronger. A younger female was administering CPR to a male later identified as Baughman. Baughman was lying on the floor in front of a couch, blue in the face, and unresponsive. Officer Rivera observed that "it looked like an overdose, but [he] couldn't be certain." Transcript Volume II at 56. The female was "hysterical," and Officer Rivera told her to move and started giving chest compressions until "fire and EMS" arrived. Id. at 55.
[¶3] Officer Rivera looked around the room to see if he could find any identification or anything Baughman might have taken so EMS could treat him appropriately. He observed "Ziploc baggy boxes through the . . . area" and "[e]mpty baggies." Transcript Volume IV at 45. He looked over the L-shaped couch and observed a backpack containing a green leafy substance that looked like marijuana in the space behind the couch in the corner. He also observed a bong and a wallet in which he found Baughman's identification. Officer Rivera "called communications" and added Baughman's name "to the run," and he was advised that Baughman had a warrant. Transcript Volume II at 60.
[¶4] Officer McGillivray made contact with Ashley and her mother Holly Michael upstairs and asked who owned the home, and Holly identified herself as the homeowner. Officer McGillivray learned that Ashley lived in the basement. He contacted Fort Wayne Police Detective Mark Gerardot and informed him of the location and contents of the backpack. Detective Gerardot approached the residence and detected the "pretty strong" odor of raw marijuana. Id. at 121. Detective Gerardot leaned over the couch and observed the open backpack.
[¶5] The medics eventually revived Baughman by giving him Narcan, a drug specifically made for overdoses of opiates such as fentanyl. Baughman eventually walked upstairs, and, after medics placed him on a gurney, Officer Rivera handcuffed him because of the warrant.
[¶6] Holly indicated to Detective Gerardot that she was the owner of the home. He asked her if she had "free range of the basement," and she stated that she "does laundry down there and that she does go into the basement." Transcript Volume IV at 185. He gave a consent to search form to Holly, who had indicated she was a nurse. Holly appeared to review the document and signed it while Ashley was in earshot. Ashley never objected to her mother giving consent and never told Detective Gerardot that he could not enter the basement.
[¶7] Officers then searched the basement and discovered three pills located on a nightstand with the marking T194, a red duffel bag next to the bed that contained a white substance in a clear plastic bag, and a glass pipe with burnt residue inside "a black extra-large jacket that was hanging next to the wall next to the stairs." Id. at 86. Officers also discovered drug paraphernalia, several small baggies of different weights of methamphetamine amounting to several grams, fentanyl, and digital scales. Officers also recovered a cellphone on the couch in the basement and retrieved a cellphone from Ashley.
[¶8] On March 4, 2021, the State charged Baughman with: Count I, dealing in methamphetamine as a level 2 felony; and Count II, dealing in cocaine or narcotic drug as a level 4 felony. On March 25, 2021, the court scheduled a jury trial for October 5, 2021.
[¶9] On August 30, 2021, Baughman filed a motion to suppress "evidence illegally obtained by the Government during its illegal search and seizure of a basement prior to obtaining a consent to search on February 12th, 2021." Appellant's Appendix Volume II at 50. He alleged that the police "violated the 4thAmendment by illegally searching the basement prior to obtaining a warrant, without consent and void of any exceptions as well as using coercion when obtaining Holly's signature for the Consent to Search." Id. at 52.
[¶10] On August 31, 2021, the court held a pretrial conference, Baughman's counsel requested a continuance, and the court scheduled a trial for April 12, 2022. On April 5, 2022, Baughman filed a motion for continuance. On April 11, 2022, the court entered an order scheduling trial for August 23, 2022.
[¶11] After a hearing, the court denied Baughman's motion to suppress. On August 22, 2022, the State filed a motion for continuance. That same day, the court held a hearing at which Baughman's counsel objected to a continuance and stated: "If the Court does grant the State's continuance, we would ask for Mr. Baughman to be OR'ed in this case." Transcript Volume II at 202. The court granted the request for a continuance, ordered Baughman released, and asked Baughman if the new trial dates of December 13, 14, and 15, 2022, were acceptable to him. Baughman answered affirmatively. That same day, the court entered an order granting the State's motion for continuance over Baughman's objection, ordering that he be released on his own recognizance "with PTS conditions," and scheduling a jury trial for December 13, 2022. Appellant's Appendix Volume II at 135.
[¶12] On September 27, 2022, the court held a hearing. Baughman's counsel addressed the court's "denial of our motion for release of Mr. Baughman" and asserted that the "motion for release" was made for two reasons including a "request for him to have a bond" and "a substantial part of that motion that was addressed in the Motion to Correct Error was motion for release under CR4." Transcript Volume II at 194. He also asserted that Baughman had been held for 180 days. The prosecutor objected and noted that Baughman had been through four attorneys, multiple continuances were attributable to him, he had a warrant for a failure to appear, he overdosed which resulted in him "almost dying," and he "picked up another Level 2 dealing case, which resulted in his bond being revoked." Id. at 196. The court ordered Baughman released on his own recognizance, stated that it was "going to congest Mr. Baughman's case out this morning and ordered that continued," and stated: "I will order as a condition of Pretrial - uh, OR'd subject to Pretrial conditions of weekly reporting along with weekly drug testing." Id. at 197.
Baughman's appellate brief does not mention a motion to correct error or a motion for release. The only reference of a "Motion for Release on Recognizance" in the table of contents in the Appellant's Appendix was filed on January 20, 2023. Appellant's Appendix Volume I at 4. The table of contents does not mention a motion to correct error.
[¶13] An entry in the chronological case summary ("CCS") dated November 2, 2022, indicates that the court reviewed a notice filed by Pretrial Services Division and found probable cause to believe Baughman had violated the conditions of release and ordered a warrant. A November 3, 2022 CCS entry indicates an arrest warrant was issued. On November 3, 2022, the State filed a Motion to Revoke Bond.
[¶14] On December 13, 2022, the court held a hearing at which Baughman's counsel asserted that he contested the State's petition to revoke bond and argued that he did not believe Baughman was on bond, he was released because of "CR4 issues," and stated: "I believe that that's the reason why he was released, and, obviously, that does not apply in both his new cases. He has two new cases. Obviously, he can have a bond or the Court can do whatever it wants with those bonds. I don't represent him on those two cases." Id. at 228. The following exchange then occurred:
THE COURT: Okay, I see your argument then. And then that is probably going to require then, Judge Godfrey to decide - he's the one that granted the CR4. Is it the same argument for the F2-9?
[Defense Counsel]: Yes, Judge, we made the argument for both.
THE COURT: Was he released on CR4 on both of those cases?
[Defense Counsel]: So, I believe that's what the order says, okay. We first released him on 8 for CR4 issues. On 9, the Judge said, [defense counsel], it's not necessarily that I agree with your argument, but I'm releasing him nonetheless. But I believe when I looked at the order, the order seemed to reflect a CR4 release. So, I just want to make sure I accurately reflect what happened both in court, and also in the order. Because I have been beating that drum, the CR4 issue for a while.Id. at 228-229. After some discussion, the court stated: "In the F2-9 case, there will be an order showing that the case is continued on court congestion, I'm assuming." Id. at 230. Baughman's counsel stated: "Understood." Id. The court stated: "Alright, so in the F2-9 trial setting will be December 14, 9:30, and then we will show hearing on the State's Petition to Revoke Bond for January 4, at 8:30, in front of Judge Godfrey. I believe that handles what needs to be done in your two cases, correct, [defense counsel]?" Id. at 231. Baughman's counsel answered affirmatively.
At an earlier hearing, the court referenced the present lower court cause number, 02D04-2103-F2-9, as well as cause number 02D04-2001-F2-8.
[¶15] On December 13, 2022, the court entered an order stating that the case was "continued due to congestion of the court calendar." Appellant's Appendix Volume II at 161-162. On January 4, 2023, the court held a hearing. Baughman's counsel stated that he was "requesting a speedy trial." Transcript Volume II at 238. The court scheduled a jury trial for March 14 and 15, 2023, which was the first available date on the court's calendar.
[¶16] On January 20, 2023, Baughman filed a Motion for Release on Recognizance Pursuant to Criminal Rule 4(A) asserting that he had been in custody while this cause had been pending for 229 days. On February 2, 2023, the court granted Baughman's motion and ordered him "release[d] on his own recognizance, with pretrial . . . conditions, on this cause only." Appellant's Appendix Volume II at 172.
[¶17] On March 14, 2023, the court entered an order stating that the cause was set for a speedy jury trial today, "[s]hortly before trial was to begin, the court was informed that the suit provided to [Baughman] by either family or friends contained illegal drugs, secreted in the suit and shoes," and "a powdery substance was also discovered consistent with being fentanyl." Id. at 186. The court ordered: "Speedy Jury Trial continued to May 23, 2023; May 24, 2023; and May 25, 2023." Id. at 187.
[¶18] On March 21, 2023, the court held a status hearing. Baughman's counsel referenced Ind. Criminal Rule 4 and argued: "The seventy (70) date is a bright line rule and it doesn't matter whether the defendant is specifically incarcerated for the case for which he requested the speedy trial and later on requests a dismissal or discharge because he's not brought to trial within seventy (70) days." Transcript Volume III at 23. He also stated: "Even [if] the Court OR'd him, he is still in jail. He requested a speedy trial, and as of March 14th, that was day sixty-nine (69)." Id. On March 27, 2023, the court held a hearing. That same day, the court entered an order denying Baughman's request to dismiss the case and discharge him.
[¶19] On April 24, 25, and 26, 2023, the court held a jury trial. The State presented the testimony of multiple witnesses. During Ashley's testimony, the court admitted multiple exhibits showing text messages between a phone she had let Baughman use for a period of time and other numbers. During the testimony of Detective Cameron Norris, the court admitted multiple reports including text message conversations involving the phone number associated with the phone Ashley had allowed Baughman to use. Detective Norris testified that he had been a narcotics detective for over eight years and worked undercover and explained that the messages involved negotiations for narcotics. The jury found Baughman guilty as charged.
Discussion
I.
[¶20] Baughman refers to Ind. Criminal Rule 4 and asserts the delay in his trial violated the United States Constitution and the Indiana Constitution. We initially note that Baughman does not cite the record in the discussion section of his argument that he was entitled to dismissal under Ind. Criminal Rule 4. We remind counsel that Ind. Appellate Rule 46(A)(8)(a) provides that "[t]he argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning," and "[e]ach contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on, in accordance with Rule 22."
[¶21] At the time of the trial, Ind. Criminal Rule 4(A) provided:
No defendant shall be detained in jail on a charge, without a trial, for a period in aggregate embracing more than six (6) months from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge (whichever is later); except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar ....(Subsequently amended January 1, 2024). "Criminal Rule 4(B) allows an incarcerated defendant to 'move for an early trial' and then be 'discharged if not brought to trial within seventy (70) days.'" Watson v. State, 155 N.E.3d 608, 615 (Ind. 2020). Ind. Criminal Rule 4(C) provided:
No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar ....(Subsequently amended January 1, 2024). "The broad goal of Indiana's Criminal Rule 4 is to provide functionality to a criminal defendant's fundamental and constitutionally protected right to a speedy trial." Austin v. State, 997 N.E.2d 1027, 1037 (Ind. 2013). "It places an affirmative duty on the State to bring the defendant to trial, but at the same time is not intended to be a mechanism for providing defendants a technical means to escape prosecution." Id. "[I]n cases where the issue is a question of law applied to undisputed facts, the standard of review - like for all questions of law - is de novo." Id. at 1039. In those cases where a trial court makes a factual finding of congestion or emergency under Criminal Rule 4 based on disputed facts, the standard of review for appellate courts is the clearly erroneous standard. Id. at 1040.
Ind. Criminal Rule 4(B) provided in part:
If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar.(Subsequently amended January 1, 2024).
[¶22] With respect to Ind. Criminal Rule 4(A), we find the issue moot. See Mills v. State, 512 N.E.2d 846, 850 (Ind. 1987) (addressing a defendant's argument that the trial court erred when it denied his motion for discharge under Ind. Criminal Rule 4(A) and holding that the issue was moot as the defendant had been convicted); Bowens v. State, 481 N.E.2d 1289, 1290 (Ind. 1985) (holding that appellant's argument under Ind. Criminal Rule 4(A) was moot as, "[i]f [appellant] lost any rights, as he now complains, it was the right to be released on bond because of his incarceration for a period of six months").
[¶23] As for Ind. Criminal Rule 4(B), at the January 4, 2023 hearing, Baughman's counsel stated that he was "requesting a speedy trial." Transcript Volume II at 238. Based upon Rule 4(B), he was to be brought to trial within seventy days of his January 4, 2023 motion or by March 15, 2023. The court scheduled a jury trial to begin on March 14, 2023, which was the first available date on the court's calendar. On February 2, 2023, the court ordered Baughman released on his own recognizance. Given his release prior to the expiration of the seventy-day period, we find that the objective of Ind. Criminal Rule 4(B) was satisfied and he was no longer entitled to the benefits of that Rule. See Williams v. State, 631 N.E.2d 485, 487 (Ind. 1994) ("Once released from custody, a defendant receives no further benefit from Crim. R. 4(B)."), reh'g denied. To the extent Baughman was incarcerated on other charges, the Indiana Supreme Court has held that "Criminal Rule 4(B) is available to a defendant only when the defendant is held on the pending charges for which he requests a speedy trial." Cundiff v. State, 967 N.E.2d 1026, 1027 (Ind. 2012). Accordingly, we cannot say the trial court erred.
[¶24] With respect to Rule 4(C), "[a] defendant extends the one-year period by seeking or acquiescing in delay resulting in a later trial date." Pelley v. State, 901 N.E.2d 494, 498 (Ind. 2009), reh'g denied. "[W]hen a defendant asks for a continuance, the time between the motion for a continuance and the new trial date is chargeable to the defendant." Vermillion v. State, 719 N.E.2d 1201, 1204 (Ind. 1999), reh'g denied. When a motion for discharge for an Ind. Criminal Rule 4 violation is made prematurely, it is properly denied. Stephenson v. State, 742 N.E.2d 463, 487, n.21 (Ind. 2001), cert. denied, 534 U.S. 1105, 122 S.Ct. 905 (2002). The determination of whether a particular delay in bringing a defendant to trial violates the speedy trial guarantee depends on the specific circumstances of the case. Payton v. State, 905 N.E.2d 508, 511 (Ind.Ct.App. 2009), trans. denied. We review a trial court's ruling on a Rule 4(C) motion for abuse of discretion. Curtis v. State, 948 N.E.2d 1143, 1149 (Ind. 2011). Upon appellate review, a trial court's finding of congestion will be presumed valid and need not be contemporaneously explained or documented by the trial court. Alter v. State, 860 N.E.2d 874, 877 (Ind.Ct.App. 2007).
[¶25] The State charged Baughman on March 4, 2021. Thus, the State was required to bring him to trial by March 4, 2022, unless the one-year period was extended by delays not chargeable to the State. On March 25, 2021, the court scheduled a jury trial for October 5, 2021. On August 31, 2021, Baughman's counsel requested a continuance, and the court rescheduled the trial for April 12, 2022. This extended the one-year period by 189 days to September 9, 2022.(Cumulative extension (hereinafter, "C.E.") 189 days). On April 5, 2022, Baughman filed a motion for continuance, and the court rescheduled the trial for August 23, 2022. This extended the one-year period by 133 days to January 20, 2023. (C.E. 322 days).
This represents the delay between October 5, 2021, and April 12, 2022.
This represents the delay between April 12, 2022, and August 23, 2022.
[¶26] On December 13, 2022, the court entered an order finding court congestion. On January 4, 2023, the court scheduled a trial for March 14, 2023, which was the first available date on the court's calendar. This extended the one-year period by ninety-one days to April 21, 2023. (C.E. 413 days).
This represents the delay between December 13, 2022, and March 14, 2023.
[¶27] On March 14, 2023, the court entered an order stating that the cause was set for a speedy jury trial, it was informed that the suit provided to Baughman by either family or friends contained illegal drugs and "a powdery substance was also discovered consistent with being fentanyl." Appellant's Appendix Volume II at 186. The order also stated that the court met with Baughman's counsel and prosecutors in chambers and it was agreed that defense counsel purchasing a new suit for trial was not a viable option and Baughman could not be tried in his orange jail jumpsuit. The court observed that it was "well aware even trace amounts of fentanyl can cause death or serious bodily harm." Id. at 187. At the March 21, 2023 hearing, the court asked Baughman's counsel if he agreed the incident on March 14th created an emergency situation. Transcript Volume III at 25. Baughman's counsel answered: "I would believe that a risk of . . . contamination or danger to other people is an emergency, yes, I would agree to that." Id. At the March 27, 2023 hearing, the court stated that the delay originating from the March 14th incident was "an emergency that was declared by the Court." Id. at 40. The court rescheduled the trial for April 24, 2023. This extended the one-year period by forty-one days to June 1, 2023. (C.E. 454 days). The court held the jury trial on April 24, 25, and 26, 2023, well before the June 1, 2023 deadline. Under these circumstances, we cannot say reversal is warranted.
This represents the delay between March 14, 2023, and April 24, 2023.
[¶28] We next turn to Baughman's argument that the length of delay resulted in a denial of his speedy trial rights under the United States Constitution and the Indiana Constitution. The Sixth Amendment to the United States Constitution provides, in relevant part, that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ...." Article 1, Section 12 of the Indiana Constitution states, in applicable part, that "[j]ustice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay."
[¶29] When evaluating whether a defendant's constitutional speedy trial right has been infringed, we use the balancing test announced by the Supreme Court of the United States in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182 (1972). Watson, 155 N.E.3d at 614. The test assesses both the government's and the defendant's conduct and takes into consideration: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of the speedy trial right; and (4) any resulting prejudice. Id. (citing Barker, 407 U.S. at 530, 92 S.Ct. 2182). "Though this analysis is grounded in the Sixth Amendment, we have traditionally also applied it to claims brought under Article 1, Section 12." Id.
In Watson, the Indiana Supreme Court noted that "for a speedy trial claim brought under Article 1, Section 12, an analysis distinct from Barker may be more suitable . . . [b]ut because neither party asks us to undertake this separate analysis, we use only the federal test." Watson, 155 N.E.3d at 614 n.2. Baughman cites Barker in his brief and does not ask us to undertake a separate analysis.
[¶30] While the State charged Baughman on March 4, 2021, and his trial did not begin until April 24, 2023, Baughman is responsible for many of the delays. As discussed, Baughman's requests for continuances resulted in delays of 322 days. While Baughman asserts that "the prejudice to [him] was significant," Appellant's Brief at 30, he does not develop an argument that he was prejudiced. Under the circumstances, we cannot say that the delay resulted in a denial of Baughman's speedy trial rights under the United States Constitution or the Indiana Constitution.
II.
[¶31] Baughman generally challenges the admission of the evidence seized from the basement and argues that Holly's consent to search was not valid. We review the trial court's ruling on the admission of evidence for an abuse of discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997), reh'g denied. We reverse only where the decision is clearly against the logic and effect of the facts and circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997), reh'g denied. In reviewing the trial court's ruling on the admissibility of evidence from an allegedly illegal search, an appellate court does not reweigh the evidence but defers to the trial court's factual determinations unless clearly erroneous, views conflicting evidence most favorably to the ruling, and considers afresh any legal question of the constitutionality of a search or seizure. Meredith v. State, 906 N.E.2d 867, 869 (Ind. 2009). "[T]he ultimate determination of the constitutionality of a search or seizure is a question of law that we consider de novo." Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014).
To the extent Baughman contends that the trial court abused its discretion in admitting text messages, he fails to cite to the record in his argument regarding the messages. Accordingly, we conclude that Baughman has waived this argument. See Smith v. State, 822 N.E.2d 193, 202-203 (Ind.Ct.App. 2005) ("Generally, a party waives any issue raised on appeal where the party fails to develop a cogent argument or provide adequate citation to authority and portions of the record."), trans. denied.
[¶32] In ruling on admissibility following the denial of a motion to suppress, the trial court considers the foundational evidence presented at trial. Id. If the foundational evidence at trial is not the same as that presented at the suppression hearing, the trial court must make its decision based upon trial evidence and may consider hearing evidence only if it does not conflict with trial evidence. Guilmette v. State, 14 N.E.3d 38, 40 n.1 (Ind. 2014).
[¶33] Baughman argues that all evidence seized from the basement was inadmissible as a product of a warrantless and illegal search. The Fourth Amendment to the United States Constitution provides, in pertinent part: "[t]he right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ." U.S. CONST. amend. IV. If the search is conducted without a warrant, the State bears the burden to show that one of the well-delineated exceptions to the warrant requirement applies. M.O. v. State, 63 N.E.3d 329, 331 (Ind. 2016).
[¶34] The plain view exception to the Fourth Amendment's warrant requirement allows police to warrantlessly seize an object if they "are lawfully in a position from which to view the object, if its incriminating character is immediately apparent, and if [police] have a lawful right of access to the object." Combs v. State, 168 N.E.3d 985, 991 (Ind. 2021) (quoting Warner v. State, 773 N.E.2d 239, 245 (Ind. 2002) (citing Horton v. California, 496 U.S. 128, 135-137, 110 S.Ct. 2301 (1990))), cert. denied, 142 S.Ct. 1125 (2022). It "stands for the premise that objects which are in plain view of an officer who rightfully occupies a particular location can be seized without a warrant and are admissible as evidence." Id. at 991-992 (quoting Sloane v. State, 686 N.E.2d 1287, 1291 (Ind.Ct.App. 1997), trans. denied).
[¶35] Baughman acknowledges that the officers were legally present in the basement and had a valid basis for conducting a visual search of the area. Officer Rivera testified that he saw "a bag / a purse" which was open and contained a green leafy substance. Transcript Volume II at 58. He testified he did not touch the bag or open the bag and did not have to move anything to see the bag. Officer McGillivray testified that he saw the pink bag behind the couch, the bag was in plain view, he did not touch the bag, and he could see into the bag. Baughman's arguments pointing to testimony suggesting that the bag with the marijuana was under a blanket and closed constitutes a request to reweigh the evidence, which we cannot do. We conclude that the marijuana was in plain view. Even if the discovery of marijuana was improper, we cannot say reversal is warranted in light of Holly's consent as discussed below. See State v. Keller, 845 N.E.2d 154, 169 (Ind.Ct.App. 2006) (holding that because the consent from the person who registered a hotel room was adequate to permit a search of the room, evidence improperly seized by officers during the previous safety search would have been encountered by different and legitimate means and that the valid consent, which was given after an improper search and seizure, was sufficient for a proper search of the hotel room, and the evidence discovered was admissible).
[¶36] One well-recognized exception to the warrant requirement is a voluntary and knowing consent to search. Bradley v. State, 54 N.E.3d 996, 999 (Ind. 2016) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041 (1973); Stallings v. State, 508 N.E.2d 550, 552 (Ind. 1987)). "Authority to consent to a search can be either apparent or actual." Id. (quoting Gado v. State, 882 N.E.2d 827, 832 (Ind.Ct.App. 2008), trans. denied). "Actual authority requires a sufficient relationship to or mutual use of the property by persons generally having joint access to or control of the property for most purposes." Id. at 9991000 (citing Halsema v. State, 823 N.E.2d 668, 677 (Ind. 2005)). "The test for evaluating apparent authority is whether 'the facts available to the officer at the time would cause a person of reasonable caution to believe that the consenting party had authority over the premises.'" Id. at 1000 (quoting Primus v. State, 813 N.E.2d 370, 374-375 (Ind.Ct.App. 2004) (citing Krise v. State, 746 N.E.2d 957, 967 (Ind. 2001); Trowbridge v. State, 717 N.E.2d 138, 144 (Ind. 1999), reh'g denied)). The State bears the burden of proving that the third party possessed the authority to consent. Id.
[¶37] The record reveals that Holly testified that she lived at the residence for nine years and she was the homeowner. While she testified that Ashley lived in the basement, she also testified that she had access to the basement and went there to do laundry. Holly testified that no door separated the living area in the basement and the top of the stairs. Although Holly indicated that she felt pressured into giving consent, she testified that the officers did not threaten her, yell, or place their hands on her. When asked if officers ever threatened either Holly or Ashley, Detective Gerardot answered: "Never, not in my presence." Transcript Volume II at 125. He also testified that there was no argument, weapons were not drawn, he was not in Holly's personal space, and he did not tell Holly that, if she did not consent, she would lose custody of her children, lose her home, or that she would be arrested. He testified that he did not read the form to her because she had stated she was a nurse and had a professional job. He testified that Holly never told him she did not have authority to consent to the search because the basement contained Ashley's room.
[¶38] The form signed by Holly states in part:
YOUR RIGHTS
Prior to consenting to a warrantless search of your property, you are informed that you have the following constitutional rights:
1. YOU HAVE THE RIGHT TO REQUIRE THAT A SEARCH WARRANT BE OBTAINED PRIOR TO ANY SEARCH OF YOUR PROPERTY.
2. YOU HAVE THE RIGHT TO REFUSE TO CONSENT TO A WARRANTLESS SEARCH OF YOUR PROPERTY.
3. YOU HAVE THE RIGHT TO TALK TO A LAWYER FOR ADVICE BEFORE CONSENTING TO A WARRANTLESS SEARCH OF YOUR PROPERTY.
4. IF YOU ARE UNABLE TO EMPLOY A LAWYER, ONE WILL BE APPOINTED TO ASSIST YOU IN DECIDING IF YOU SHOULD CONSENT TO A WARRANTLESS SEARCH OF YOUR PROPERTY.
Exhibits Volume II at 32. The form contained the handwritten word "YES" and Holly's signature after the question: "Do you understand these rights?" Id.
The form also contained the following:
I, Holly Michael (have read) (have had read to me) the statement of my rights and I understand my rights. I do not want a lawyer
at this time. I knowingly and voluntarily consent to OFFICER(S) . . . of the . . . Fort Wayne P.D. conducting a warrantless search of the following described property: Downstairs Basement ....
I authorize these officers to seize and remove from my property any items on my property which they deem pertinent to their investigation. I understand and know what I am doing. No promises or threats have been made to me to cause me to consent to a warrantless search. Additionally, no pressure or coercion of any kind has been used against me to cause me to consent to a warrantless search. My consent to a warrantless search of my property is freely and voluntarily given and is given with the specific knowledge that I have a constitutional right to refuse to consent to a warrantless search and to discuss my decision with a lawyer prior to consenting to a warrantless search of my property.Id. The bottom of the form contains Holly's signature. When asked by her counsel if she recalled if the officer told her that she needed to sign the consent, she answered: "I don't remember him saying I needed to sign the consent." Transcript Volume II at 114. Under the circumstances, we conclude that Holly had authority to consent to the search and that her consent was voluntary and knowing.
[¶39] For the foregoing reasons, we affirm Baughman's convictions.
[¶40] Affirmed.
Riley, J., and Foley, J., concur.