Brignoni v. State

1

Wilfredo Brignoni, Jr., Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff

No. 22A-CR-2359

Court of Appeals of Indiana

May 4, 2023

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.

Appeal from the Porter Superior Court The Honorable Michael A. Fish Judge Trial Court Cause No. 64D01-1505-F6-3787

ATTORNEY FOR APPELLANT Patrick B. McEuen McEuen Law Office Portage, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Courtney Staton Deputy Attorney General Indianapolis Indiana

MEMORANDUM DECISION

Crone, Judge.

Case Summary

[¶1] Wilfredo Brignoni, Jr., appeals his convictions for level 6 felony battery against a public safety official and class A misdemeanor possession of marijuana. We reframe the issues raised on appeal as whether the trial court erred in admitting certain evidence at trial and whether the trial court committed fundamental error in instructing the jury. The crux of Brignoni's claims of error revolves around the warrantless entry into his home that he alleges violated his constitutional rights under the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. Concluding that Brignoni has waived his challenge to the admission of evidence and that he invited any instructional error that occurred, we affirm.

Facts and Procedural History

[¶2] On April 29, 2015, Portage Animal Control Officer Richard Henderlong was dispatched to the area around the South Shore Marina on a complaint that two "Pit Bull" dogs were running loose. Tr. Vol. 2 at 180. Officer Henderlong drove to the marina, and as he was speaking to the complainant, he observed two dogs running toward him, and one of them became "aggressive." Id. at 175. Officer Henderlong obtained his stun baton from his van and "zapped it once and it made a loud crackle noise" because that noise "usually scares the dogs" and often causes them to "run right back home." Id. at 175-176. After hearing the noise, the two dogs ran off in "a westerly direction." Id. Officer Henderlong got in his van and went down the street in search of the dogs.

[¶3] Officer Henderlong arrived at the address where Brignoni resided. Brignoni, Lindsay Littlefield, and their young son, W.B., were in the front yard. Brignoni quickly approached Officer Henderlong's vehicle. Officer Henderlong asked Brignoni if he owned two pit bulls. Brignoni responded that his dogs were actually "Cane Corsos." Id. at 180. When Officer Henderlong informed Brignoni that he believed that the dogs were running loose, Brignoni "took off running toward the back of his house towards the marina[.]" Id. Brignoni returned a few moments later, and Lindsay told Officer Henderlong that "the dogs were already in their kennels." Id. at 181. Officer Henderlong walked to the backyard to check but did not see any animals. When Officer Henderlong returned to the front yard, Brignoni told him that the dogs were kenneled. Officer Henderlong indicated that he needed to identify the dogs, and Brignoni stated that he "could show" the officer. Id. at 182. Brignoni led Officer Henderlong through a sliding glass door and into a "breezeway" between the house and the garage to some kennels. Id. at 183. While in that area, Officer Henderlong noticed "a strong odor of marijuana." Id. Brignoni showed his dogs to Officer Henderlong, and the officer was able to confirm that they were the two dogs he had seen running loose and that they were now kenneled.

[¶4] Officer Henderlong left Brignoni's residence, stopped nearby, and contacted the Portage Police Department. He reported that he had smelled marijuana in Brignoni's residence and that he was concerned for the safety of the small child residing in the home. The officer who took the call, Detective Sergeant Lisa Duncan, recognized the address as that on two outstanding Porter County arrest warrants for "Thomas Lee Littlefield." Id. at 246. Detective Sergeant Duncan and Portage Police Department Officer Christian Irsa went to Brignoni's residence to serve the arrest warrants and to do a welfare check on W.B. Id. at 196, 245.

[¶5] Upon arrival, the officers noticed the smell of marijuana emanating from Brignoni's residence. As the officers walked up the driveway, Brignoni exited the home and began walking toward them in a "very agitated" manner. Id. at 198. Officer Irsa observed that Brignoni's eyes were bloodshot and glassy and that the odor of marijuana intensified as he got closer to the officers. Detective Sergeant Duncan believed that Brignoni "looked to be high." Tr. Vol. 3 at 3.

[¶6] The officers informed Brignoni that they were on the property to do a welfare check on W.B. and to serve arrest warrants on Thomas Littlefield. Brignoni told the officers that W.B. was "fine" and asked to see the arrest warrants. Tr. Vol. 2 at 200. Detective Sergeant Duncan handed Brignoni the arrest warrants and gave him time to read through them. However, when he was finished, Brignoni would not give the warrants back to her. He kept pulling them away as if he was "playing a game." Id. at 201. After multiple attempts to retrieve the warrants, Detective Sergeant Duncan was eventually able to obtain them from Brignoni.

[¶7] Brignoni continued to be extremely argumentative with the officers, insisting that Littlefield was not at the house and telling the officers "You're not coming in my house." Id. Brignoni called out to Lindsay to bring W.B. outside.

Detective Sergeant Duncan walked to the front door to speak with Lindsay as Brignoni and Officer Irsa stood to the side. Brignoni continued to shout at the officers while continuously looking over his shoulder. When Officer Irsa noticed that "things started to get heated" between Detective Sergeant Duncan and Lindsay, he told Brignoni to "stay put" and walked over to assist. Id. at 205. Rather than stay where he was, Brignoni ran into the house, closed the storm door behind him, and locked it while looking out at the officers. Officer Irsa continued to speak to Brignoni through the door, and Brignoni eventually unlocked and opened the door slightly and asked to again see the arrest warrants. Officer Irsa told him that he would not give him the warrants "because [he] didn't return [them] the first time." Id. at 206. Because Brignoni had opened the door slightly, Officer Irsa placed his body in the gap so that Brignoni could not shut and lock the door. Brignoni became upset by this and told Officer Irsa to "get out of [my] house." Id. at 207.

[¶8] Officer Irsa then walked past the threshold of the home. In response, Brignoni "straight-arm shoved" Officer Irsa in the shoulder to try to push him back out. Id. Officer Irsa told Brignoni that he was under arrest. Brignoni refused to turn around to be handcuffed and instead pulled away from Officer Irsa. This resulted in an "all-out fight" that culminated in Brignoni punching and striking Officer Irsa. Id. at 208-09. Officer Irsa was eventually able to take Brignoni into custody. Because Detective Sergeant Duncan could hear "some kind of scuffling" coming from the lower level of the home, she walked through the home with Lindsay to do a protective sweep and look for Littlefield. Tr. Vol. 3 at 10. Littlefield was not located.

[¶9] Thereafter, Officer Irsa contacted the prosecutor's office to obtain a search warrant for Brignoni's residence. The search warrant was issued permitting officers to search for marijuana. The search revealed various strains of marijuana located in a kitchen cabinet along with empty baggies, rolling papers, and an ashtray.

[¶10] The State charged Brignoni with level 6 felony maintaining a common nuisance, level 6 felony neglect of a dependent, level 6 felony battery against a public safety official, level 6 felony resisting law enforcement, and misdemeanor possession of marijuana. Brignoni filed a motion to suppress the marijuana, arguing that the initial warrantless entry into his residence violated his rights under both the Fourth Amendment to the Federal Constitution and Article 1, Section 11 of the Indiana Constitution. Brignoni also filed a motion to dismiss the resisting law enforcement and battery counts for the same reasons. Following a hearing, the trial court denied both motions.

[¶11] Prior to trial, the State moved to dismiss the maintaining a common nuisance and neglect of a dependent charges, which the trial court granted. A bifurcated jury trial began on March 1, 2022. The jury found Brignoni guilty of the battery and possession charges but not guilty of resisting law enforcement. Brignoni subsequently admitted to a prior drug-related conviction, which supported the enhancement of his possession conviction from a class B to a class A misdemeanor. Following a sentencing hearing, the trial court imposed an aggregate two-and-one-half-year sentence, with six months executed in the Porter County Jail and the rest suspended to probation. This appeal ensued.

Discussion and Decision

Section 1 - Brignoni has waived any challenge to the trial court's admission of evidence.

[¶12] We first address Brignoni's assertion that "[i]t was error for the trial court to deny [his] motion to suppress and the introduction of evidence at trial violated [his] Fourth Amendment rights against unreasonable seizure of his person" and his rights under Article 1, Section 11 of the Indiana Constitution. Appellant's Br. at 12. Because this appeal follows a completed trial and conviction, the issue is more properly characterized as a request to review the trial court's decision to admit any challenged evidence. Casillas v. State, 190...