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Wilkinson v. State

Court of Appeals of Indiana

January 27, 2017

Roger Wilkinson, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.

         Appeal 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

         Statement of the Case

         [¶1] Roger Wilkinson appeals his convictions of possession of methamphetamine, a Level 5 felony, [1] unlawful possession of a syringe, a Level 6 felony, [2] operating a vehicle while intoxicated, a Class A misdemeanor, [3] operating a vehicle with a Schedule I or II controlled substance or its metabolite in the body, a Class C misdemeanor, [4] and possession of marijuana, a Class B misdemeanor.[5] We affirm.


         [¶2] Wilkinson raises the following restated issues for our review:

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.

         Facts and Procedural History

         [¶3] 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.

         [¶4] 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.[6]

         [¶5] 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.

         [¶6] 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 the vehicle.

         [¶7] 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 vehicle's floorboard.

         [¶8] 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.

         [¶9] 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.

         [¶10] 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.

         [¶11] 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.

         [¶12] 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 years.[7]

         [¶13] 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.

         Discussion and Decision

         I. Sufficiency of the Evidence

         [¶14] 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 ...

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