Lundquist v. State, No. 85A02-0410-CR-841.

• Docket Nº: No. 85A02-0410-CR-841.
• Citation: 834 N.E.2d 1061
• Case Date: September 30, 2005
• Court: Supreme Court of Indiana

834 N.E.2d 1061 Frederick M. LUNDQUIST, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff. No. 85A02-0410-CR-841. Court of Appeals of Indiana. September 30, 2005.

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Lisa M. Dirig, Fort Wayne, for Appellant.

Steve Carter, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

MATHIAS, Judge.

Frederick Michael Lundquist ("Lundquist") was convicted in Wabash Circuit Court of Class D felony possession of marijuana, and he admitted to being an habitual substance offender. He raises four issues, which we consolidate and restate as:

I. Whether the trial court abused its discretion when it denied Lundquist's motion to continue the trial due to pretrial publicity;

II. Whether the trial court properly admitted the marijuana seized during the search of Lundquist's property; and,

III. Whether the trial court abused its discretion when it admitted testimony concerning marijuana found in Lundquist's home.

Concluding that the trial court did not abuse its discretion when it denied Lundquist's motion for a continuance, admitted the marijuana seized during the search of his property and admitted the testimony concerning the marijuana found in his home, we affirm.

Facts and Procedural History

Lundquist resides in Wabash County on property owned by his mother, Dorothy Lundquist ("Dorothy").¹ Dorothy's own residence is adjacent to Lundquist's. On June 4, 2003, Lundquist, Dorothy, and his sister, Jody Bright ("Jody"), were involved in an altercation that resulted in Dorothy calling 911. Wabash County Sheriff's Deputies Bryan Cox ("Deputy Cox") and Jonathan Pace ("Deputy Pace") received a 911 dispatch stating that Lundquist was intoxicated and causing a disturbance at Dorothy's residence.

Lundquist left Dorothy's residence before the deputies arrived. Dorothy told

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the deputies that Lundquist was intoxicated and "tearin' things up." Tr. p. 279. Jody stated that Lundquist knocked her down onto the ground. Tr. p. 228. The deputies did not observe any marks on Jody, and neither Dorothy nor Jody wished to press charges. However, Jody told Deputy Pace that they should hurry back to Dorothy's house if another 911 call was placed. Tr. p. 280. Deputy Pace stated that they would return if needed. Id. Jody replied, "No, I'm serious. If you get called back out here, you better get here quick." Id.

Approximately ten to fifteen minutes later a second 911 call was placed from a caller in Ft. Wayne.² When the deputies returned to Dorothy's residence, Dorothy asked why they were there because she had not called for assistance. Tr. pp. 229, 281. The deputies explained that they had received a second 911 call from a caller in Ft. Wayne. Jody told Deputy Pace that Lundquist had been back and "it's still goin' on." Tr. p. 281. The deputies decided that they should not leave until they had found Lundquist and talked to him. Tr. pp. 230, 282.

Deputy Pace moved his vehicle to the end of Lundquist's driveway, walked up the driveway, and knocked on the front door. Tr. p. 282. At the same time, Deputy Cox proceeded towards Lundquist's house by walking over a gravel driveway connecting Dorothy's and Lundquist's driveways. However, Deputy Cox left the gravel driveway as he approached Lundquist's house and proceeded to walk along a tree line on the property towards the back door of the residence. Deputy Cox believed that Lundquist was likely in the woods adjacent to his house because Lundquist had run into the woods on prior occasions when the police were called to his residence. Tr. p. 232. In addition, Dorothy was yelling into the woods asking Lundquist to come out and talk to the deputies. Id. However, Dorothy also told Deputy Cox several times that she wanted him to leave. Id.

While Deputy Pace was knocking on the front door, Deputy Cox was looking into the house through the sliding glass back door to see if there was any movement in the house. Tr. p. 233. Deputy Cox then turned to look into the woods and observed a clay planter situated on the tree line containing a cactus and a plant that appeared to be marijuana. Tr. p. 233.

When no one answered his knock on the front door, Deputy Pace proceeded around the side of the house to look into the woods in an attempt to locate Lundquist. Towards the back of the house, Deputy Pace noticed a patch of weeds, and in that weeded area, he saw several plants that he believed were marijuana. Tr. pp. 283-84. Deputy Pace called out Deputy Cox's name to get his attention. Deputy Cox saw the plants near Pace and also believed that they were marijuana. Tr. pp. 235, 283.

Eventually, Deputy Cox located Lundquist who was hiding in the woods. Tr. pp. 236, 286. Lundquist appeared to be intoxicated and had a large knife in a leather sheath on his right side. Lundquist continually put his hands in his pockets even though he was told not to do so. Tr. pp. 236, 286-87. Because Lundquist was uncooperative and attempted to walk back into the woods, Deputy Cox handcuffed him and placed him in Deputy Pace's squad car.³ Tr. pp. 237-38, 288.

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He was later transported to the Wabash County Jail while Deputies Cox and Pace remained on the property to secure the scene.

After the deputies obtained a search warrant, they searched the property and discovered approximately 300 marijuana plants. Tr. p. 292. Most of the plants were growing from the ground but a few were growing in planters scattered around the property. The deputies collected the marijuana, stripped the leaves from the stalks, and submitted the leaves to the State Police Laboratory for chemical testing. Analysis of the leaves revealed that the plant material was marijuana with a weight of 182 grams. Tr. p. 359; Ex. Vol., State's Ex. 14.

On June 9, 2003, Lundquist was charged with Class D felony possession of marijuana. The State filed an additional charging information on January 14, 2004, alleging that Lundquist was an habitual substance offender. On July 28, 2004, Lundquist moved to suppress all evidence of the marijuana found on his property. A hearing was held on the motion, and it was denied on August 25, 2004. A jury trial commenced on August 26, 2004. The jury found Lundquist guilty of Class D felony possession of marijuana and Lundquist pled guilty to being an habitual substance offender. He was sentenced to serve three years for the marijuana conviction and his sentence was enhanced by eight years due to his habitual substance offender status. Lundquist now appeals. Additional facts will be provided as necessary.

I. Motion to Continue

A ruling on a non-statutory motion for a continuance⁴ is committed to the sound discretion of the trial court and will be reversed only for an abuse of that discretion and resultant prejudice. Watson v. State, 776 N.E.2d 914, 920 (Ind.Ct.App.2002); see also Carter v. State, 686 N.E.2d 1254, 1261 (Ind.1997) ("There must be a clear demonstration of an abuse of that discretion, [ ] and the record must show that the accused was prejudiced."). An abuse of discretion occurs where the court's decision is clearly against the logic and effect of the facts and circumstances. Watson, 776 N.E.2d at 920.

During the week leading up to Lundquist's trial, articles appearing in a local newspaper discussed the charges filed in this case and allegations that Lundquist was involved in a shooting. Therefore, the day prior to trial, Lundquist moved to continue the trial arguing that such publicity had "tainted this jury pool to such an extent that at this time Mr. Lundquist would not be able to get a fair trial." Tr. p. 122.

In addressing whether Lundquist's motion for continuance should be granted, the trial court stated:

I'm sensitive to the arguments that are being made, but we do have our jury here. I think if we develop on any of the examination of the jury pool, if it develops that they cannot be fair. That they cannot set aside prejudice, if they have any. If they have read the articles and formed an opinion then certainly at that point I think the motion would be well founded and I would grant. If however, it appears that they either have not read or not aware of, or believe that they can be fair, I think that the Motion would not be well founded.... So I think we would be okay on the preliminary examination, to make that determination

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after hearing what they had to say about it.

Tr. p. 126.

Lundquist concedes that those jurors who indicated during voir dire that they had heard of or read the news coverage also indicated that they were not biased by that pretrial publicity. See Br. of Appellant at 25. Moreover, Lundquist accepted the jury without objection and did not renew his motion for a continuance. Accordingly, we conclude that Lundquist has not established prejudice, and the trial court acted within its discretion when it denied his motion for continuance.

II. Search of the Property

Lundquist originally challenged the admission of the marijuana through a motion to suppress, but appeals following a completed trial challenging its admission at trial. "Thus, the issue is ... appropriately framed as whether the trial court abused its discretion by admitting the evidence at trial." Washington v. State, 784 N.E.2d 584, 587 (Ind.Ct.App.2003). Our standard of review of rulings on the admissibility of evidence is essentially the same whether the challenge is made by a pre-trial motion to suppress or by trial objection. Ackerman v. State, 774 N.E.2d 970, 974-75 (Ind.Ct.App.2002), trans. denied. We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court's ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind.Ct.App.2005), trans. denied. However, we must also consider the uncontested evidence favorable to the defendant. Id.

At trial, Lundquist failed to object to 1) testimony concerning the deputies'...