Opinion
No. 18A05-1012-CR-767
09-23-2011
HAROLD A. MILLER, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT : DONALD K. MCCLELLAN McClellan & McClellan Muncie, Indiana ATTORNEYS FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana ANDREW R. FALK Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D),
this 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:
DONALD K. MCCLELLAN
McClellan & McClellan
Muncie, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
ANDREW R. FALK
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE DELAWARE CIRCUIT COURT
The Honorable Thomas A. Cannon, Judge
Cause No. 18C05-0903-FC-9
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN , Judge
STATEMENT OF THE CASE
Harold Miller appeals his conviction for intimidation as a class C felony.
We affirm.
ISSUES
1. Whether there is sufficient evidence to support the conviction.
2. Whether the trial court abused its discretion in instructing the jury.
FACTS
On March 11, 2009, Phil Taylor, the zoning administrator for Delaware County, received a complaint regarding vehicles located on property at 1380 North County Road 800 East (the "Property"), which was owned by Vera Miller, Miller's grandmother. Upon inspection, Taylor discovered "a couple of vehicles that violated the "junk vehicle ordinance." (Tr. 4).
Taylor also observed a fifth-wheel travel trailer on the Property, near and clearly visible from the road. The trailer sat in the unfenced side yard of the Property, separated from the main residence by a wide dirt driveway. Taylor noticed a pathway leading to the trailer and that the trailer had an electrical cord and garden hose extending from it. Based on these observations, Taylor believed that someone was permanently residing in the trailer, which violated additional county ordinances. The next day, Taylor reported the trailer and its living conditions to the Delaware County Health Department (the "Health Department").
On March 20, 2009, Christiana Mann, an inspector with the Health Department's Environmental Division, went to the Property to investigate Taylor's complaint. Mann drove an official truck issued by the county and marked as a Health Department vehicle. She also wore a badge, identifying her as an employee of the Health Department. Based on the standard protocol for conducting initial investigations, Mann planned on trying to make contact with "whoever [wa]s inhabiting" the Property; inform them that she was investigating a formal complaint; and seek permission to conduct any necessary inspections. (Tr. 22).
When Mann arrived at the Property, she parked and sat in her truck, noting the Property's details, including the absence of any signage forbidding someone from coming onto the Property. As she viewed the Property, she "noticed a curtain being pulled back from the fifth wheel [a]nd [she] saw a face." (Tr. 27). She waved "to acknowledge" the person and her presence. (Tr. 27). She then exited her truck and walked toward the trailer. Because the trailer's door was on the side facing away from the road, Mann walked around and behind the trailer. As Mann approached the trailer's door, a woman exited the trailer. Mann identified herself and showed the woman her identification badge. She explained that she was investigating a complaint regarding the lack of permanent water and a sewage service for the trailer. The woman was "pleasant" and did not ask Mann to leave the Property. (Tr. 34).
At that point, Miller exited the trailer, and using "a lot of foul language," he approached Mann and asked what she was doing there and who she was. (Tr. 35). He also told Mann that she was trespassing. Before Mann could explain the reason for her presence, Miller "went back into the fifth wheel quickly and came right back out." (Tr. 35). He had a handgun in his hand "and was coming toward [Mann] with the gun." (Tr. 35). As Miller pointed the gun at Mann, the gun "was making a noise like it was getting ready to be used." (Tr. 37). Miller "quickly" came toward Mann, forcing Mann to walk backwards. (Tr. 38). Miller initially attempted to prevent Mann from leaving but eventually allowed her to leave, but he followed her to the truck and kept the gun pointed at her. Miller called Mann a "stupid bitch" and told her that she was trespassing. (Tr. 39). He continued to scream at her as she drove away. Mann immediately reported the incident to police.
On March 26, 2009, the State charged Miller with Count 1, intimidation as a class C felony; Count 2, criminal recklessness as a class D felony; and Count 3, pointing a firearm at another person as a class A misdemeanor. The trial court commenced a two-day jury trial on October 27, 2010. During the trial, Miller admitted that he and his girlfriend had been residing in the trailer the day Mann came to the Property.
The jury found Miller guilty of intimidation as a class C felony and not guilty on the remaining charges. Following a sentencing hearing on November 23, 2010, the trial court sentenced Miller to four years, with two years suspended to probation.
Additional facts will be provided as necessary.
DECISION
1. Sufficiency of the Evidence
Miller asserts that the evidence is insufficient to support his conviction.
When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court's ruling. Appellate courts affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (quotations and citations omitted).
Indiana Code section 35-45-2-1 provides that a person commits class C felony intimidation by drawing or using a deadly weapon while communicating a threat to commit a forcible felony to another person, with the intent "that the other person be placed in fear of retaliation for a prior lawful act[.]" Miller argues that Mann had not been engaged in a prior lawful act but rather a warrantless administrative search of the Property in violation of the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. Accordingly, Miller maintains that Mann "was nothing more than a common law trespasser," entering the Property "without right." Miller's Br. at 14.
a. Fourth Amendment
The Fourth Amendment to the Constitution of the United States protects citizens against unreasonable searches and seizures. The reasonableness of a search requires that the subject of the search has exhibited an actual subjective expectation of privacy that society as a whole is prepared to recognize as objectively "reasonable." The Fourth Amendment does not protect objects, activities, or statements that a citizen has exposed to the "plain view" of outsiders because the individual has expressed no intention of keeping those activities private.Trimble v. State, 842 N.E.2d 798, 801 (Ind. 2006) (internal citations omitted), adhered to on reh'g, 848 N.E.2d 278 (Ind. 2006). "[T]he mere fact that an area subjected to police observation is within the curtilage" of a defendant's home does not transform a warrantless observation or inspection into an unconstitutional search. Id.
The protection afforded by the Fourth Amendment extends to the curtilage in order to protect personal and familial privacy in an area that is physically and psychologically linked to the intimacy of the home. But there is no Fourth Amendment protection for activities or items that, even if within the curtilage, are knowingly exposed to the public.Id. at 802. Furthermore, a government actor's entry onto private property and her observations do not violate the Fourth Amendment when there is a legitimate investigatory purpose for being on the property and entry is limited to places visitors would be expected to go, such as walkways, driveways, and porches. Id.
Determining which areas of a piece of private property may reasonably be viewed as open to visitors is fact-specific. Id. "The determination will 'necessarily include consideration of the features of the property itself, such as the existence of walkways and fences or other obstructions to access or viewing, the location of primary residential entryways, as well as the nature or purpose for the visitor's call.'" Id. (quoting Divello v. State, 782 N.E.2d 433, 438 (Ind. Ct. App. 2003), trans. denied).
Here, Taylor testified that he observed the trailer from the road. No fence surrounded the trailer. Rather, the trailer sat in an open yard, next to a driveway. Taylor believed that someone was permanently living in the trailer because, in part, a pathway led to the trailer. Miller subsequently acknowledged that he did in fact live in the trailer. Taylor reported his observations and reasons for believing that someone was permanently living in the trailer to the Health Department. Mann, as part of job, went to the Property for a legitimate investigatory purpose. When Mann arrived at the Property, she observed someone inside the trailer. She therefore exited her vehicle and walked around the back of the trailer, toward the trailer's door to speak with the person regarding a possible ordinance violation.
Given these facts, we find that Mann entered an area of the Property that one reasonably could view as open to the public and where one could be expected to go. We therefore do not agree that Mann engaged in an unlawful act when she entered the Property.
b. Indiana Constitution
Article 1, Section 11 of the Indiana Constitution provides, in part, that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated[.]" In analyzing an alleged violation of the Indiana Constitution, we focus on whether the government actor's actions were reasonable given the totality of the circumstances. Trimble, 842 N.E.2d at 803. In determining reasonableness, we consider the following factors: 1) "'the degree of concern, suspicion, or knowledge that a violation has occurred'"; 2) "'the degree of intrusion the method of the search or seizure imposes on the citizen's ordinary activities'"; and 3) "'the extent of law enforcement needs.'" Id. (quoting Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005)). "Police are authorized to conduct routine preliminary investigations, including calling on private citizens through normal means of approach to residences or other structures." Id. (emphasis added).
Again, in this case, Mann went to the Property to investigate a reliable report that someone was residing in the trailer, which, if true, was an ordinance violation. Upon seeing someone inside the trailer, she approached the trailer, taking a direct route to the trailer's door. Given the totality of the circumstances, we find that Mann's actions were reasonable. See, e.g., State v. Seidl, 939 N.E.2d 679, 685 (Ind. Ct. App. 2010) (finding no constitutional error where a law enforcement officer "divert[ed]" himself from the residence to a barn "to more closely observe what was already in plain sight"), reh'g denied. We therefore cannot say that Mann, upon entering the Property, engaged in an unlawful act.
2. Jury Instructions
Miller asserts that the trial court abused its discretion in instructing the jury on criminal trespass and a health inspector's right to inspect private property.
"The purpose of an instruction is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict." "Instruction of the jury is generally within the discretion of the trial court and is reviewed only for an abuse of that discretion." "In reviewing a trial court's decision to give or refuse tendered jury instructions," this Court "considers: (1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions which are given."Gravens v. State, 836 N.E.2d 490, 493 (Ind. Ct. App. 2005) (internal citations omitted), trans. denied.
a. Criminal trespass
Miller argues that the trial court abused its discretion in instructing the jury on criminal trespass. He maintains that "[b]y instructing the jury as to criminal trespass, the jury was misled as to the applicable law that would apply to Mann in coming onto Miller's property at the time of the incident." Miller's Br. at 17.
Regarding criminal trespass, the trial court instructed the jury as follows:
Criminal trespass is defined by law as follows:
A person who, not having a contractual interest in the property, knowingly or intentionally enters the real property of another person having been denied entry by the other person or that person's agent or, not having a contractual interest in the property, knowingly or intentionally refuses to leave the real property of another person after having been asked to leave by the other person or that person's agent.(App. 201).
A person has been denied entry when the person has been denied entry by means of personal communication, oral or written, or posting or exhibiting a notice at the main entrance in a manner that is either prescribed by law or likely to come to the attention of the public.
Miller concedes that he did not object to this instruction at trial. "'The law is settled that failure to object to a jury instruction given by the trial court waives the issues for review.'" Gamble v. State, 831 N.E.2d 178, 185 (Ind. Ct. App. 2005) (quoting Fisher v. State, 810 N.E.2d 674, 677 (Ind. 2004)), trans. denied. Nonetheless, Miller argues that waiver does not apply because the giving of the instruction constituted fundamental error.
We note, however, that Miller tendered the following instruction:
Entering, or remaining on another's property without permission, constitutes criminal trespass under I.C. 35-43-2-2 and therefore cannot constitute a prior lawful act.(App. 118) (citations omitted).
Criminal Trespass—A person who, not having a contractual interest in the property, knowingly or intentionally refused to leave the real property of another person after having been asked to leave by the other person or that person's agent.
In instructing the jury, the trial court merely sought to incorporate Miller's tendered instruction and in fact covered the substance of Miller's tendered instruction. Thus, Miller tendered an instruction which produced the result of which he now complains. Having invited any error in tendering an instruction on criminal trespass, Miller cannot now argue that the error supports reversal. See Gamble, 831 N.E.2d at 187 ("Error invited by the complaining party is not reversible error.").
b. Health officer's right to inspect
Miller further argues that the trial court's instruction on a health officer's right to inspect private property constituted fundamental error. He contends that "not only was the statute not a correct statement of law, but . . . was unconstitutional as applied." Miller's Br. at 20.
The trial court instructed the jury as follows: "Indiana law provides that the local health officer or the officer's designee may enter upon and inspect private property, at proper times after notice, in regard to the possible presence, source and cause of disease." (App. 202) (citing I.C. § 16-20-1-23). Miller tendered the following instruction:
A local health officer, or designee may enter upon and inspect private party [sic]:
a. At proper times; and(App. 117) (citation omitted).
b. After due notice.
In regard to the possible presence, source and cause of disease.
Having invited any error in tendering an instruction regarding the inspection of private property by a health officer, Miller cannot now argue that the error, if any, supports reversal. See Gamble, 831 N.E.2d at 187. We therefore find that Miller failed to preserve any error in the giving of the instructions on criminal trespass and a health officer's right to inspect private property.
Affirmed. FRIEDLANDER, J., and VAIDIK, J., concur.