Bennett v. State

• Decision Date: 07 May 2003
• Docket Number: No. 53A01-0206-CR-203.,53A01-0206-CR-203.
• Parties: Danny Ray BENNETT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

787 N.E.2d 938

Danny Ray BENNETT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 53A01-0206-CR-203.

Court of Appeals of Indiana.

May 7, 2003.

Susan K. Carpenter, Public Defender of Indiana, David P. Freund, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Judge.

Danny Bennett was convicted following a jury trial of robbery and four counts of criminal confinement, all Class B felonies, resisting law enforcement and receiving stolen property, both Class D felonies, and carrying a handgun without a license, a Class A misdemeanor. Bennett then pled guilty to the enhancement of carrying a handgun without a license to a Class C felony. The trial court sentenced Bennett to an aggregate forty-four year sentence. Bennett appeals the convictions and his sentence. We affirm Bennett's convictions, but revise his sentence and remand to the trial court for a determination of the total credit time to which Bennett is entitled for time served.

Issues

Bennett raises five issues for our review, which we restate as:

1. Whether the trial court properly admitted photographs of Bennett's property into evidence during his trial;

2. Whether the State presented sufficient evidence for his receiving stolen property conviction;

3. Whether the trial court considered proper aggravating and mitigating circumstances in sentencing Bennett;

4. Whether Bennett's forty-four year sentence is inappropriate; and

5. Whether the trial court incorrectly calculated his credit for time served.

Facts and Procedural History

On June 25, 2001, Bennett, wearing a ski mask and carrying a small chrome pistol, entered the backdoor of the Eagles Lodge in Ellettsville. Under the ski mask was netting that covered Bennett's eyes and the mouth of the ski mask was sewn shut. As it was almost closing time for the lodge, there were only four people present at the time. Bennett approached the bar and told Terri Gast, the bartender, to give him the money. Bennett threatened to kill her and the others present, so Gast put the money from the register into a bag and gave it to him. Bennett then ordered Gast to retrieve the money from the safe. When she said that she could not get into the safe, Bennett said that he knew that she could open the safe and to give him the money. Gast opened the safe and gave him one of the two bags of money inside.

Bennett then ordered the four people into the men's restroom and barricaded the door with chairs. As the four waited in the restroom, they heard Bennett remove the second bag of money from the safe and then exit the lodge. They then pushed open the restroom door. While one man called the police, another ran out the front door and saw a white vehicle with a black vinyl top leaving the lodge's parking lot. The men gave a description of the vehicle to the police.

Ellettsville Police Officer Brian Mobley received the call and, as he was getting into his police car, saw a white vehicle with a black vinyl top drive by. He observed Bennett's face through the partially open driver's side window. Officer Mobley gave chase. During the chase, Bennett's speed reached 100 miles per hour. Officer Mobley radioed the license plate number on the white vehicle to dispatch and learned that the license plate was registered to Mark Moody.

Officer Mobley lost Bennett in a cloud of smoke on a gravel road. When Officer Mobley went to the lodge to talk to the witnesses, one witness, Mike Schmaltz, a part-time bartender at the lodge, stated that he believed Bennett was the robber. Schmaltz and Bennett had been friends for years and Schmaltz informed Officer Mobley that Bennett had lived on Moody's property until recently moving to a trailer near the point where Officer Mobley lost Bennett.

Schmaltz accompanied Officers Mobley and Alvy Bohall to Bennett's trailer. As they approached, Bennett exited his trailer. Schmaltz identified Bennett and Officer Mobley asked Bennett if he owned a white vehicle. Bennett said that he did and that it was parked behind the trailer. Bennett gave Officer Mobley permission to look at the vehicle. Officer Mobley recognized the vehicle as the one he had chased even though there was no longer a rear bumper or a license plate on the car. Officer Mobley touched the hood and ascertained that the car was warm. Additionally, Officer Mobley saw a ski mask, gloves, and a chrome handgun sitting on the driver's seat. The handgun was loaded with bullets. Officer Mobley arrested Bennett and impounded the white vehicle. White netting was found under the seat and four one-dollar bills were found on the floorboard. Officers returned the following day without a search warrant and collected evidence and took photographs of Bennett's property.

Bennett was charged with robbery, four counts of criminal confinement, carrying a handgun without a license, resisting law enforcement, and receiving stolen property. At trial, the photographs of Bennett's property were admitted over his objection. Bennett was convicted as charged and the trial court sentenced him to an aggregate forty-four year sentence.

Discussion and Decision

I. Admission of Evidence

A. Standard of Review

The admission of evidence is within the sound discretion of the trial court, and the decision whether to admit evidence will not be reversed absent a showing of manifest abuse of the trial court's discretion resulting in the denial of a fair trial. Wilson v. State, 754 N.E.2d 950, 954 (Ind.Ct.App. 2001). In determining the admissibility of evidence, the reviewing court will only consider the evidence in favor of the trial court's ruling and unrefuted evidence in the defendant's favor. Id.

B. Admission of Photographs Taken the Day After Bennett's Arrest

Upon arrest, Bennett consented to a search of his property. Following the search, the police left the property, transported Bennett to jail, and impounded the white vehicle. The following day, without a search warrant, the police returned to Bennett's property and conducted a further search of Bennett's property and trailer. Additionally, the police took photographs of Bennett's trailer and property.

Prior to trial, Bennett filed a Motion to Suppress seeking to have the items the police found and seized from his property during a series of searches excluded from evidence at trial. Following a two-day evidentiary hearing, the trial court granted Bennett's motion in part and denied it in part. Specifically, the trial court stated:

The Court having reviewed the evidence and arguments of counsel regarding [Bennett]'s Motion to Suppress All Evidence, and being duly advised, now FINDS:

1. [Bennett]'s arrest was legal and appropriate 2. The "sweep" of [Bennett]'s trailer and vehicle were lawful;

3. [Bennett] consented to the search of his trailer and car;

4. The items of evidence seized by the police during this search are admissible;

5. [Bennett]'s consent to the search was limited to the search conducted in his presence;

6. The police should have obtained a search warrant to conduct the "second search";

7. The items of evidence seized during the "second search" are suppressed....

Appellant's Appendix at 51.

Immediately preceding the trial, Bennett moved to suppress any photographs taken by the police during their second search except for any photographs taken from the vantage point of the public road. Bennett argued that he had posted a "No Trespassing" sign on his property and therefore, he had a reasonable expectation of privacy. The trial court denied Bennett's motion. The State then offered four photographs of Bennett's trailer and property (labeled as State's Exhibits 12, 13, 14, and 17) and the court admitted them into evidence over Bennett's objection. Bennett does not appeal the admission of State's Exhibit 12 because it appears to have been taken from the vantage point of the public road, but Bennett argues that the trial court erred in refusing to suppress and exclude the other three photographs.

The State argues that the photographs were admitted as demonstrative evidence. Demonstrative evidence is evidence offered for purposes of illumination and clarification. Wise v. State, 719 N.E.2d 1192, 1196 (Ind.1999). To be admissible, the evidence need only be sufficiently explanatory or illustrative of relevant testimony to be of potential help to the trier of fact. Id.

The State argues that the officers did not violate the Fourth Amendment by entering Bennett's property and taking the photographs. The touchstone of Fourth Amendment analysis is whether a person has a "constitutionally protected reasonable expectation of privacy." Shultz v. State, 742 N.E.2d 961, 964 (Ind.Ct.App. 2001), trans. denied (quoting Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984)). Thus, when the police come onto private property to conduct an investigation or for some other legitimate purpose and restrict their movements to places visitors could be expected to go (e.g., walkways, driveways, porches), observations made from such vantage points are not covered by the Fourth Amendment. Id. The State argues that the officers took photographs of those areas of Bennett's property that were open to the public. We cannot agree. Exhibit 17, for example, is a photograph taken of the area behind Bennett's trailer. This cannot be considered an area open to the public such as a driveway or walkway. Therefore, the trial court erred in admitting Exhibits 13, 14, and 17.

However, the admission of the photographs was harmless error. Admission of evidence in violation of the Fourth Amendment is subject to harmless error analysis. Smock v. State, 766 N.E.2d 401, 407 (Ind.Ct.App.2002). Harmless error occurs when the conviction is supported by substantial independent evidence of guilt which satisfies the reviewing court that...