MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing FILED the defense of res judicata, collateral estoppel, or the law of the case. Feb 03 2017, 9:21 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brian A. Karle Curtis T. Hill, Jr. Ball Eggleston, PC Attorney General of Indiana Lafayette, Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Anthony W. Brown, February 3, 2017 Appellant-Defendant, Court of Appeals Case No. 54A05-1605-CR-1087 v. Appeal from the Montgomery Superior Court State of Indiana, The Honorable Heather Dennison, Appellee-Plaintiff. Judge Trial Court Cause No. 54D01-1505-F5-1419
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 54A05-1605-CR-1087 | February 3, 2017 Page 1 of 13 Case Summary [1] Appellant-Defendant Anthony Brown appeals following his conviction for
Level 5 felony possession of methamphetamine and the determination that he is
a habitual offender. Specifically, Brown argues that the trial court abused its
discretion in admitting certain evidence at trial. He alternatively argues that
even if the trial court did not abuse its discretion in admitting the challenged
evidence, his aggregate twelve-year sentence is inappropriate. We affirm.
Facts and Procedural History [2] On the morning of April 17, 2015, off-duty Crawfordsville Police Lieutenant
Russ Keller observed a red 2010 Chevrolet Camaro leaving a known drug house
belonging to Tim Summers. Lieutenant Keller also observed that the vehicle’s
license plate was expired. Lieutenant Keller relayed his observations to
Crawfordsville Police Officer Jerod1 Colley, who was on duty and patrolling the
general vicinity around Summers’s home that morning.
[3] At approximately 9:00 a.m., Officer Colley located the Camaro and followed it.
After calling the Camaro’s license plate information into dispatch, Officer
Colley learned that the license plate on the vehicle was still valid, but was
registered to a different vehicle. Specifically, the license plate was registered to
1 The record is unclear as it provides inconsistent spellings of Officer Colley’s first name, spelling it both “Jerod” and “Jared.” Because the State utilizes the spelling “Jerod” in its brief, we will do the same in this memorandum decision. Our apologies to Officer Colley if this is not the proper spelling of his first name.
Court of Appeals of Indiana | Memorandum Decision 54A05-1605-CR-1087 | February 3, 2017 Page 2 of 13 a 1999 Chevrolet Z-28. Officer Colley then observed the Camaro make an
illegal turn, after which he activated his emergency lights and initiated a traffic
stop.
[4] Upon approaching the Camaro, which was being driven by Brown, Officer
Colley informed Brown of the reason for the traffic stop. Brown was unable to
provide a valid registration for the vehicle or proof of insurance. Brown
provided Officer Colley with a bill of sale and indicated that he had just
purchased the Camaro. The bill of sale made no mention of the vehicle to
which the license plate was registered and Brown indicated that the license plate
was registered to a vehicle which he no longer owned.
[5] Officer Colley then asked Brown to exit his vehicle and inquired into where
Brown was coming from. Brown indicated that he had come from Summers’s
home and that he knew Summers because they had previously worked together.
Officer Colley asked Brown for permission to search the vehicle and Brown
consented to the search.
[6] Officer Colley also said that he would like to pat Brown down for safety
purposes. Brown “did not have an objection to [Officer Colley] conducting a
weapons pat-down on him for [officer] safety.” Tr. p. 55. Brown indicated that
“he may be in possession of a knife” but that he “wasn’t for sure where at on
him.” Tr. p. 55. As Officer Colley was conducting the pat-down search,
Officer Colley discovered a plastic baggy containing a white powdery substance
in Brown’s right pocket. Brown eventually admitted that the substance
Court of Appeals of Indiana | Memorandum Decision 54A05-1605-CR-1087 | February 3, 2017 Page 3 of 13 contained within the plastic baggy was “meth.” Tr. p. 62. The substance was
later tested and was confirmed to be methamphetamine.
[7] On May 7, 2015, the State charged Brown with Level 6 felony possession of
methamphetamine. Brown was also alleged to be a habitual offender. The
State subsequently sought permission to re-docket the charge as a Level 5 felony
due to Brown’s prior conviction for dealing in a controlled substance, which is
an enhancing circumstance to the Level 6 felony possession of
methamphetamine charge. The trial court granted the State’s request for
permission to re-docket the charge as a Level 5 felony in an order dated January
22, 2016.
[8] On March 10, 2016, Brown filed a motion to suppress certain evidence relating
to the methamphetamine recovered during the traffic stop. Following a
hearing, the trial court denied Brown’s motion to suppress.
[9] The trial court conducted a two-day jury trial beginning on March 15, 2016.
During trial, the State introduced evidence relating to the methamphetamine
recovered from Brown’s vehicle during the traffic stop. Brown objected to the
admission of this evidence, arguing that it was recovered in violation of his
constitutional rights. The trial court disagreed and admitted the State’s
proffered evidence over Brown’s objection.
[10] At the end of trial on March 16, 2016, the jury found Brown guilty of Level 6
felony possession of methamphetamine. Brown subsequently pled guilty to the
Level 5 felony enhancement and to being a habitual offender. On April 21,
Court of Appeals of Indiana | Memorandum Decision 54A05-1605-CR-1087 | February 3, 2017 Page 4 of 13 2016, the trial court sentenced Brown to an aggregate executed term of twelve
years.
Discussion and Decision [11] Brown contends that the trial court abused its discretion in admitting certain
evidence relating to the methamphetamine recovered from his person during
the traffic stop. Alternatively, Brown contends that even if the trial court did
not abuse its discretion in admitting the challenged evidence, his aggregate
twelve-year sentence is inappropriate in light of the nature of his offense and his
character. We will discuss each contention in turn.
I. Admission of Evidence [12] Brown contends that the trial court abused its discretion in admitting evidence
relating to the recovery of methamphetamine from his person during the traffic
The admission or exclusion of evidence is entrusted to the discretion of the trial court. Farris v. State, 818 N.E.2d 63, 67 (Ind. Ct. App. 2004). We will reverse a trial court’s decision only for an abuse of discretion. Id. We will consider the conflicting evidence most favorable to the trial court’s ruling and any uncontested evidence favorable to the defendant. Taylor v. State, 891 N.E.2d 155, 158 (Ind. Ct. App. 2008). An abuse of discretion occurs when the trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court or it misinterprets the law. Id. In determining whether an error in the introduction of evidence affected an appellant’s substantial rights, we assess the probable impact of the evidence
Court of Appeals of Indiana | Memorandum Decision 54A05-1605-CR-1087 | February 3, 2017 Page 5 of 13 on the jury. Oldham v. State, 779 N.E.2d 1162, 1170 (Ind. Ct. App. 2002). Admission of evidence is harmless and is not grounds for reversal where the evidence is merely cumulative of other evidence admitted. Pavey v. State, 764 N.E.2d 692, 703 (Ind. Ct. App. 2002).
Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012). “Moreover, the trial
court’s ruling will be upheld if it is sustainable on any legal theory supported by
the record, even if the trial court did not use that theory.” Rush v. State, 881
N.E.2d 46, 50 (Ind. Ct. App. 2008) (citing Gonser v. State, 843 N.E.2d 947, 950
(Ind. Ct. App. 2006)).
[13] In arguing that the trial court abused its discretion in admitting the challenged
evidence, Brown claims that the challenged evidence was recovered in violation
of the Fourth Amendment to the United States Constitution.2 “The
fundamental purpose of the Fourth Amendment to the United States
Constitution is to protect the legitimate expectations of privacy that citizens
possess in their persons, their homes, and their belongings.” Trotter v. State, 933
N.E.2d 572, 579 (Ind. Ct. App. 2010) (internal citations omitted).
Because a traffic stop is a seizure under the Fourth Amendment, police may not initiate a stop for any conceivable reason, but must possess at least reasonable suspicion that a traffic law has been violated or that other criminal activity is taking place. Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769,
2 Brown makes no separate argument under Article One, Section 11 of the Indiana Constitution. As such, Brown has waived any state constitutional claim, and we will review Brown’s claim solely under the federal constitution. See Lewis v. State, 911 N.E.2d 76, 83 n.6 (Ind. Ct. App. 2009), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 54A05-1605-CR-1087 | February 3, 2017 Page 6 of 13 1772, 135 L.Ed.2d 89, 95 (1996); Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660, 667 (1979); Finger v. State, 799 N.E.2d 528, 532 (Ind. 2003). An officer’s decision to stop a vehicle is valid so long as his on-the-spot evaluation reasonably suggests that lawbreaking occurred. See State v. Washington, 898 N.E.2d 1200, 1205 (Ind. 2008).
Meredith v. State, 906 N.E.2d 867, 869-70 (Ind. 2009).
[14] Brown concedes that the initial stop of his vehicle was permissible. However,
Brown argues that Officer Colley improperly prolonged the stop by detaining
Brown for longer than was necessary to issue Brown a citation for the illegal
turn observed by Officer Colley. In support, Brown relies upon the United
States Supreme Court’s decision in Rodriguez v. United States, 135 S. Ct. 1609,
1616 (2015), in which the Supreme Court held that a traffic stop which is
justified by a police-observed traffic violation becomes unlawful if it is
prolonged beyond the time reasonably required to complete the officer’s
mission of issuing a traffic ticket for the observed traffic violation.
[15] Despite Brown’s claim to the contrary, our review of the record, indicates that
Officer Colley did not prolong the stop beyond the time reasonably required to
complete Officer Colley’s mission. The record indicates that at the time Officer
Colley initiated the traffic stop, he had observed both that the license plate on
the vehicle was not registered to the vehicle Brown was driving and that Brown
had made an illegal turn. While Officer Colley arguably could have completed
the task of writing Brown a ticket for the illegal turn without prolonging the
Court of Appeals of Indiana | Memorandum Decision 54A05-1605-CR-1087 | February 3, 2017 Page 7 of 13 stop, the record indicates that at the time Officer Colley asked Brown to exit the
vehicle, his investigation into the registration of the vehicle was ongoing.
[16] When Officer Colley approached the vehicle, Brown failed to provide a proper
registration for the vehicle or proof of insurance. Brown provided a bill of sale
and indicated that he had recently purchased the vehicle and that the license
plate on the car was registered to a vehicle that Brown had previously owned.
However, the bill of sale made no mention of the vehicle to which the license
plate was registered and Brown failed to provide any documentation indicating
that the license plate was properly registered to a vehicle belonging to him.
[17] Brown requested permission to look in the backseat of the vehicle to try to find
valid proof of insurance. It was at this point that Officer Colley requested
permission to search the vehicle. It is undisputed that Brown consented to the
search.
[18] At this point, Officer Colley also requested permission to pat Brown down for
safety purposes. Brown “did not have an objection to [Officer Colley]
conducting a weapons pat-down on him for [officer] safety.” Tr. p. 55. Brown
indicated that “he may be in possession of a knife” but that he “wasn’t for sure
where at on him.” Tr. p. 55. As Officer Colley was conducting the pat-down
search, Officer Colley discovered a plastic baggy containing a white powdery
substance in Brown’s right pocket.
[19] Upon review, we cannot say that Officer Colley prolonged the traffic stop
longer than was reasonable to complete his investigation into the apparent issue
Court of Appeals of Indiana | Memorandum Decision 54A05-1605-CR-1087 | February 3, 2017 Page 8 of 13 with the vehicle’s registration. Brown’s vehicle was first brought to Officer
Colley’s attention due to the question surrounding the legality of the
registration. It is not unreasonable that Office Colley would investigate the
validity of the vehicle’s registration upon stopping the vehicle. Accordingly, we
conclude that the traffic stop was not prolonged such as to make it unlawful.
[20] Further, the fact that Officer Colley asked Brown about where he had been
prior to the initiation of the traffic stop does not render the stop unreasonable as
it did not prolong the traffic stop.
During a lawful detention, police do not need a reasonable suspicion to ask questions of the detainee. In Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005), the [United States Supreme] Court emphasized that it has “held repeatedly that mere police questioning does not constitute a seizure.” 544 U.S. at 101, 125 S.Ct. at 1471, 161 L.Ed.2d at 308, quoting Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389, 398 (1991). “Even when officers have no basis for suspecting a particular individual, they may generally ask questions of the individual[.]” Id., quoting Bostick, 501 U.S. at 434–35, 111 S.Ct. at 2386, 115 L.Ed.2d at 398. An officer making a traffic stop can ask questions of a detained motorist, but the detainee is not obligated to respond, and “unless the detainee’s answers provide the officer with probable cause to arrest him, he must then be released.” Berkemer v. McCarty, 468 U.S. 420, 439-40, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317, 334 (1984) (footnotes omitted).
Washington, 898 N.E.2d at 1204. Again, Officer Colley asked questions of
Brown during the course of his investigation into the validity of the vehicle’s
registration. The fact that Brown decided to answer Officer Colley’s questions
Court of Appeals of Indiana | Memorandum Decision 54A05-1605-CR-1087 | February 3, 2017 Page 9 of 13 and ultimately consent to a search of his vehicle and pat-down of his person do
not make the stop, which was not prolonged by Officer Colley’s questions,
unreasonable. In sum, concluding that Officer Colley did not prolong the valid
traffic stop longer than was reasonably necessary to complete his investigation
into the validity of the vehicle’s registration, we further conclude that the trial
court did not abuse its discretion in admitting the evidence recovered as a result
of said traffic stop.
II. Appropriateness of Sentence [21] Brown alternatively contends that his aggregate twelve-year sentence is
inappropriate. We disagree.
[22] Indiana Appellate Rule 7(B) provides that “The Court may revise a sentence
authorized by statute if, after due consideration of the trial court’s decision, the
Court finds that the sentence is inappropriate in light of the nature of the offense
and the character of the offender.” In analyzing such claims, we “‘concentrate
less on comparing the facts of [the case at issue] to others, whether real or
hypothetical, and more on focusing on the nature, extent, and depravity of the
offense for which the defendant is being sentenced, and what it reveals about
the defendant’s character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App.
2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans.
denied). The defendant bears the burden of persuading us that his sentence is
inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).
Court of Appeals of Indiana | Memorandum Decision 54A05-1605-CR-1087 | February 3, 2017 Page 10 of 13 [23] With respect to the nature of Brown’s offense, the record demonstrates that
Brown possessed methamphetamine and that Brown is a habitual offender. In
support of his claim that his sentence is inappropriate, Brown points to the fact
that he cooperated with Officer Colley’s requests during the traffic stop and his
arrest. While this may be true, we also note that Brown’s offense was elevated
to a Level 5 felony due to his prior conviction for Class B felony dealing in a
schedule II controlled substance. In addition, the habitual offender
determination is supported by Brown’s extensive criminal history. It is also of
note that in exchange for Brown’s guilty plea to the Level 5 felony
enhancement and habitual offender determination, the State agreed to dismiss
an unrelated case in which Brown was charged with Level 4 possession of
methamphetamine and faced an additional twelve-year sentence.
[24] With respect to Brown’s character, the record demonstrates that Brown has an
extensive criminal history. Specifically, with respect to Brown’s criminal
history, the Montgomery County Probation Department noted that Brown “has
an extensive criminal history which began as a juvenile” and that Brown “has
served the majority of his adult life in prison, on parole, probation or home
detention.” Appellant’s App. Vol. II (Confidential), p. 108. Brown’s criminal
history includes juvenile adjudications leaving home without permission of a
parent and three adjudications for what would have been Class D felony theft if
committed by an adult. Brown’s criminal history also included the following
convictions: Class B felony dealing in a schedule II controlled substance, six
counts of Class B felony burglary, two counts of Class C felony forgery, three
Court of Appeals of Indiana | Memorandum Decision 54A05-1605-CR-1087 | February 3, 2017 Page 11 of 13 counts of Class D felony theft, Class A misdemeanor check deception, Class A
misdemeanor driving while suspended, Class A misdemeanor carrying a
handgun without a license, and Class A misdemeanor false informing. Brown
was also charged with two unrelated charges for Level 3 felony possession of
methamphetamine while awaiting trial in the instant matter. It also appears
that on at least one occasion, Brown has been found to be in violation of the
terms of his placement on community corrections. In addition, Brown reported
that he has previously been disciplined while in prison for a “failed drug
screen,” receiving a “loss of good time.” Appellant’s App. Vol. II
(Confidential), p. 108.
[25] In claiming that his sentence is inappropriate with respect to his character,
Brown argues that “[i]n the two and one-half years prior to his arrest, he ran a
successful business as a building contractor and he employed a crew of
individuals through that business” and “[b]ecause Brown is apparently a skilled
contractor and operated his own business, there is evidence that he can become
a productive member of society if given an opportunity outside of prison.”
Appellant’s Br. p. 17. Brown also argues that he was the primary breadwinner
for his fiancée and their children. Brown’s arguments, however, are undercut
by his statement at sentencing indicating that he chose not to work in an
attempt to avoid an outstanding warrant for his arrest.
[26] Brown’s substantial criminal history indicates that he has not only a disdain for
the criminal justice system, but also a disdain for the rights and safety of others.
Moreover, the Montgomery County Probation Department indicated that a risk
Court of Appeals of Indiana | Memorandum Decision 54A05-1605-CR-1087 | February 3, 2017 Page 12 of 13 assessment of Brown placed him in the “High” category to re-offend.
Appellant’s App. Vol. II (Confidential), p. 108. As such, we conclude that
Brown has failed to prove that his sentence is inappropriate in light of the
nature of his offenses and his character.
Conclusion [27] Concluding that the trial court did not abuse its discretion by admitting the
challenged evidence and that Brown has failed to prove that his sentence is
inappropriate, we affirm the judgment of the trial court.
[28] The judgment of the trial court is affirmed.
Vaidik, C.J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 54A05-1605-CR-1087 | February 3, 2017 Page 13 of 13