Allen v. State

• Decision Date: 07 March 2001
• Docket Number: No. 59A01-0004-CR-123.,59A01-0004-CR-123.
• Citation: 743 N.E.2d 1222
• Parties: Steve T. ALLEN, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

743 N.E.2d 1222

Steve T. ALLEN, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 59A01-0004-CR-123.

Court of Appeals of Indiana.

March 7, 2001.

Rehearing Denied April 30, 2001.

Steven E. Ripstra, Jasper, IN, Attorney for Appellant.

Karen Freeman-Wilson, Attorney General of Indiana, Eileen Euzen, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SULLIVAN, Judge

Appellant, Steve T. Allen, challenges his convictions for four counts of Burglary,¹ all Class B felonies, four counts of Theft,² all Class D felonies, one count of Possession of Marijuana,³ a Class A misdemeanor, and a determination that he is an Habitual Offender.⁴ Allen presents six issues upon appeal, which we restate as follows:

(1) Whether the trial court erred in admitting evidence obtained in a warrantless search of Allen's home;

(2) Whether there was sufficient evidence to support the convictions;

(3) Whether the trial court erred in allowing into evidence testimony pertaining to Allen's prior misconduct;

(4) Whether the trial court erred in instructing the jury;

(5) Whether Allen was denied effective assistance of counsel; and

(6) Whether the trial court improperly sentenced Allen.

We affirm.

The facts most favorable to the jury verdict reveal that at around 11:50 a.m. on June 18, 1997, Orange County Deputy Sheriff Troy Lobosky and Indiana State Trooper Bill Flick responded to a report of a traffic accident in Orange County. Upon arriving at the scene, Flick and Lobosky discovered that Allen had driven his truck off the highway and struck a utility pole. While at the accident scene, Flick and Lobosky noticed a set of Callaway "Big Bertha" golf clubs in a black golf bag in the back of Allen's truck. Phillip Weeks, an employee of Osborn's towing service, arrived to tow Allen's truck from the scene. After the police left the scene, Larry and Janet Jones drove by the accident scene and offered to give Allen a ride. Before leaving in the Jones' van, Allen removed the golf clubs, two rifles and a fireproof safe from his truck and placed them in the van. After Weeks had towed the truck to his employer's shop, Allen returned and displayed a pistol to Weeks.

After leaving the accident scene, Flick was called to the residence of Zoe Nelson. Ms. Nelson had left her home at 4:30 a.m. and returned at approximately 2:00 p.m. to discover that there had been a break-in and that a VCR and cash were missing from her home. Soon after, Flick and Lobosky were called to the home of Craig Crecelius. Mr. Crecelius had left home at 4:30 a.m. and his wife had left home at 6:30 a.m. A repairman stopped by the Crecelius house later that morning and noticed that a door to the house had been forced open. Mr. and Mrs. Crecelius returned home in the afternoon to discover that a Ruger .357 magnum handgun and a diamond ring were missing from their home.

Shortly thereafter, Flick and Lobosky responded to a burglary report at the residence of Steve and Kevin Pinnick. Both Steve Pinnick and Kevin Pinnick had left home between 5:00 a.m. and 5:30 a.m. Upon returning home that afternoon, Kevin called the police and reported that a window had been removed from his house. Kevin also reported that a nine-millimeter Beretta handgun, a Ruger .223 rifle with a scope, a Nikon 35mm camera, a Pulsar watch, a set of Callaway golf clubs in a black leather bag with the words "Big Bertha" written on the side, and a Taylor golf club had been stolen. At this point, Lobosky and Flick discussed the golf clubs seen in Allen's truck and considered Allen as a suspect in the crimes.

The police received a report of yet another burglary at the home of Doug Partenhiemer and Melissa Kunkler at 5:35 p.m. Ms. Kunkler was the last to leave the home at 5:30 a.m. When Ms. Kunkler came home at approximately 3:00 p.m., she realized that someone had removed her bathroom window and entered the house, stealing a fireproof safe, a muzzle-loading gun with a scope, a compound bow, two bracelets and a necklace.

Sometime that evening, Flick stopped by Osborn's, where the tow-truck driver, Phillip Weeks, told Flick that Allen had displayed a pistol to him earlier that day. The next morning, Flick and Lobosky discussed Allen's parole status and Lobosky called Jason Thornberry, Allen's parole officer to inform him that Allen had been seen with a firearm. Allen was forbidden from possessing firearms as a condition of his parole. Thereafter, Thornberry, accompanied by Flick and Lobosky, went to Allen's home to conduct a search. Thornberry asked Allen for permission to search the house, and Allen consented. When Thornberry asked if Allen had any firearms, Allen indicated that he did.⁵

Thornberry searched Allen's home and discovered the VCR taken from the Nelson home, the golf clubs, a nine-millimeter handgun, a Ruger .223 rifle, and the watch taken from the Pinnick home, the fire safe, muzzle-loading gun, two bracelets, and necklace taken from the Partenhiemer-Kunkler home, and approximately twenty-five grams of marijuana. The police then arrested Allen, who claimed he had received the stolen property from an acquaintance, Ron Welch. Ron Welch consented to a search of his home, and gave Flick the Ruger .357 magnum handgun stolen from the Crecelius home.

Allen was charged with four counts of burglary, four counts of theft, one count of possession of marijuana, and being an habitual offender. Allen filed a motion to suppress the evidence obtained during the warrantless search of his home. On May 25, 1999, the trial court held a suppression hearing, and on June 7, 1999, denied Allen's motion. The trial court concluded that the search was reasonable as authorized under Allen's parole agreement, and found that Allen had consented to the search.

During trial, Flick testified that Allen, following his arrest, had offered to act as a confidential police informant and make controlled drug buys. Believing this to be in violation of the trial court's order concerning Ind. Evidence Rules 403 and 404(b), Allen objected and moved for a mistrial. The trial court denied Allen's motion for a mistrial, ruling that the comment referred to Allen's offer to work as a confidential informant.

Near the conclusion of the trial, Allen tendered a jury instruction regarding Receiving Stolen Property.⁶ The trial court refused to give the instruction. The jury found Allen guilty of four counts of burglary, four counts of theft, and possession of marijuana. The jury later found that Allen was an habitual offender. On December 17, 1999, the trial court, finding four aggravating factors and no mitigating factors, sentenced Allen to a total of forty-five years imprisonment.

I Warrantless Search

Allen first claims that the trial court erred by admitting evidence obtained during the warrantless search of his home, which he claims violated rights protected by the Fourth Amendment to the United States Constitution.⁷ The admissibility of evidence is within the sound discretion of the trial court, and will not be disturbed by this court absent an abuse of this discretion. Johnson v. State (1999) Ind.App., 710 N.E.2d 925, 927. Upon review of a trial court's ruling on a motion to suppress evidence, this court will examine the evidence most favorable to the ruling, together with any uncontradicted evidence. Id. We will neither reweigh the evidence nor judge the credibility of witnesses. Id.

The Fourth Amendment to the United States Constitution provides that, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." The Fourteenth Amendment makes this protection applicable to actions by state officials. Elkins v. United States (1960) 364 U.S. 206, 213, 80 S.Ct. 1437, 4 L.Ed.2d 1669. Generally, searches should be conducted pursuant to a warrant supported by probable cause. Purdy v. State (1999) Ind.App., 708 N.E.2d 20, 22. However, the United States Supreme Court has determined that "[a] State's operation of a probation system ... presents `special needs' beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements." Griffin v. Wisconsin (1987) 483 U.S. 868, 873-74, 107 S.Ct. 3164, 97 L.Ed.2d 709.

This court has held that a probationer is entitled to limited protection of his privacy interests. Polk v. State (2000) Ind.App., 739 N.E.2d 666, 669. Indeed, the Fourth Amendment requires that a search of a probationer's home be reasonable. Purdy, supra, 708 N.E.2d at 23; Griffin, supra, 483 U.S. at 875,107 S.Ct. 3164. "[A]ffording probationers lesser protections is predicated on the premise that probation officers, or police working with probation officers, are conducting searches connected to the enforcement of conditions of probation and not for normal law enforcement purposes." Polk, supra at 669. When a search is not conducted within the regulatory scheme of probation enforcement, a probationer's normal privacy rights cannot be stripped from him. Id. The State must demonstrate that a warrantless search of a probationer was a true probationary search and not an investigatory search. Purdy, supra, 708 N.E.2d at 23. "A probation search cannot be a mere subterfuge enabling the police to avoid obtaining a search warrant."⁸Id. Thus, courts must conduct a bifurcated inquiry. First, a court should determine whether the search was indeed a parole or probation search. If the search was not conducted within the regulatory scheme of parole/probation enforcement, then it will be subject to the usual requirement that a warrant supported by probable cause be obtained. If the search is a true parole/probation search, then a court must determine whether the search was reasonable.

The facts favorable to the ruling and the uncontradicted evidence show that Weeks told the police that Allen had displayed a pistol to him in a manner Weeks found intimidating. Lobosky then passed...