from the Spencer Circuit Court. The Honorable Jon A. Dartt,
Judge. Cause No. 74C01-1504-F4-60
Attorney for Appellant Steven Ripstra
Attorneys for Appellee Curtis T. Hill, Jr. James B. Martin
Barteau, Senior Judge
of the Case
Roger Wilkinson appeals his convictions of possession of
methamphetamine, a Level 5 felony,  unlawful possession of a
syringe, a Level 6 felony,  operating a vehicle while
intoxicated, a Class A misdemeanor,  operating a vehicle with a
Schedule I or II controlled substance or its metabolite in
the body, a Class C misdemeanor,  and possession of marijuana,
a Class B misdemeanor. We affirm.
Wilkinson raises the following restated issues for our
I. Whether there was sufficient evidence to support his
convictions related to operating a vehicle;
II. Whether the warrantless search of his vehicle violated
the Indiana and Federal constitutions; and
III. Whether the trial court abused its discretion when it
denied his motion to correct error alleging juror misconduct.
and Procedural History
On April 10, 2015, at approximately 10:00 a.m., Christine
Unversaw returned home and found a strange, gray BMW parked
in her driveway. She saw an individual, later identified as
Wilkinson, slumped over in the front seat. Christine went
into her house to ask her husband, Shane, if he was expecting
a visitor. Shane indicated he was not, and went outside to
investigate. Christine followed, and the two approached the
vehicle and observed Wilkinson holding his hand over his eyes
and rocking back and forth. Wilkinson appeared disoriented
and unsteady. He had trouble keeping his head up, and slurred
his words. The vehicle's windshield was damaged, and
there was extensive damage to the driver's side. The
Unversaws asked Wilkinson if he needed help. He replied that
he was "okay." Tr. p. 296. Shane called 911 because
both he and Christine thought Wilkinson needed assistance.
Officer James Faulkenburg with the Santa Claus Police
Department arrived on the scene first, followed by Sergeant
Harold Gogel and Deputy Marvin Heilman with the Spencer
County Sheriff's Department. (The officer, sergeant and
deputy will be collectively referred to as "the
officers.") The officers determined Wilkinson was the
individual seated behind the wheel, and that the vehicle was
registered to Brett Cieslack. Cieslack had loaned the car to
his daughter for her personal use.
Wilkinson appeared to be sleeping and was slumped over behind
the steering wheel. The officers noticed the damage to the
vehicle, but determined that it was drivable. Emergency
medical personnel also responded to the scene, but left
shortly after arriving because the officers determined they
were not needed.
Gogel and Faulkenburg approached the driver's side of the
vehicle. Heilman approached from the passenger side.
Faulkenburg asked Wilkinson "if he was okay" and if
he needed any medical attention. Id. at 398.
Wilkinson stated that he did not know. Faulkenburg noticed
that Wilkinson's speech was slurred, but he showed no
signs of physical injury. Faulkenburg opened the driver's
side door and observed a plastic vial laying between
Wilkinson's legs. Faulkenburg placed the vial on top of
Heilman, who was on the other side of the vehicle, saw a
partially filled bottle of rum on the floorboard. He opened
the passenger-side door and entered the vehicle. Once inside,
he saw a hand-rolled cigarette he believed to be a marijuana
cigarette. Neither he nor Gogel smelled alcohol on Wilkinson,
but Heilman thought Wilkinson looked "lethargic, "
and "seemed to be impaired, " and might be under
the influence of illegal drugs. Id. at 440. Gogel
noticed a package of cigarette rolling papers on the
Faulkenburg asked Wilkinson to exit the vehicle, but had to
lend assistance because Wilkinson was unable to do so on his
own. Wilkinson was patted down. A cloth bag was found in the
front pocket of his hooded sweatshirt. A syringe and a small
glass jar were found inside of the bag. Wilkinson was placed
in handcuffs and seated on the ground.
Heilman eventually took possession of the plastic vial that
was found between Wilkinson's legs. Without opening the
vial, he determined it contained a hand-rolled cigarette and
plastic bags that contained powdery substances. The vial was
opened and it was confirmed that it contained three plastic
bags that contained a white, powdery substance. The
substances from two of the bags were tested using a field
test kit. They tested positive for methamphetamine.
Gogel asked Wilkinson if he would take a field sobriety test
at the scene, or a certified test at the law enforcement
center. Wilkinson declined. At some point he was arrested and
taken to jail, and the vehicle was impounded.
After arriving at the jail, a warrant was obtained to take a
sample of Wilkinson's blood. His blood tested positive
for amphetamine, methamphetamine, and THC - an active
component of marijuana. The rolled cigarettes and the
substances found in the plastic bags were analyzed by the
Indiana State Police Laboratory. One of the cigarettes was
found to contain marijuana. It was confirmed that the other
substances contained methamphetamine. Wilkinson was charged
with eight offenses related to possession of drugs and
paraphernalia, and operation of a vehicle while intoxicated.
Pre-trial, Wilkinson filed a motion to suppress the items
found in the vehicle. A hearing was held on the matter,
following which the trial court denied the motion. The items
(the rum bottle, the hand-rolled cigarettes, the plastic
container and its contents, the cloth bag and its contents)
were admitted into evidence at trial over Wilkinson's
objection. A jury found Wilkinson guilty of five of the eight
offenses, and he was sentenced to an aggregate term of six
Post-trial, Wilkinson filed a motion to correct error,
alleging juror misconduct. It was determined that two jurors,
Guy Whelan and Henry Warsinsky, both knew State's witness
Brett Cieslack, but failed to disclose this during voir dire
or the trial. Wilkinson asked the court to order a new trial.
Following a hearing on the matter, the trial court denied the
motion. Wilkinson now appeals.
Sufficiency of the Evidence
Wilkinson was convicted of Class A misdemeanor operating a
vehicle while intoxicated, and operating a vehicle with a
Schedule I or II controlled substance or its metabolite in
the body. He maintains the State failed to present sufficient
evidence that he actually operated the vehicle while
intoxicated because security camera footage ...