MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded FILED as precedent or cited before any court except Oct 19 2018, 9:56 am
for the purpose of establishing the defense of CLERK res judicata, collateral estoppel, or the law of Indiana Supreme Court Court of Appeals and Tax Court the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Alexander L. Hoover Curtis T. Hill, Jr. Law Office of Christopher G. Walter, P.C. Attorney General Nappanee, Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Ashley N. Sexton, October 19, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1020 v. Appeal from the Elkhart Circuit Court State of Indiana, The Honorable Michael A. Appellee-Plaintiff Christofeno, Judge Trial Court Cause No. 20C01-1610-F3-50
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1020 | October 19, 2018 Page 1 of 16 Case Summary [1] Ashley N. Sexton appeals her convictions and sentence for level 3 felony
possession of methamphetamine and class A misdemeanor possession of a
controlled substance. She argues that the trial court erred in admitting evidence
allegedly obtained in violation of her right against unreasonable searches and
seizures guaranteed by the Fourth Amendment to the United States
Constitution. She also argues that her twelve-year aggregate sentence is
inappropriate based on the nature of the offenses and her character. We
conclude that the evidence was not seized in violation of her federal
constitutional rights and that she fails to carry her burden to show that her
sentence is inappropriate. Therefore, we affirm.
Facts and Procedural History [2] On October 22, 2016, at approximately 12:30 a.m., Goshen Police Officers
Mark Clere and Randy Valderrama were on patrol in an unmarked gray
minivan. They drove to a Goshen church, which had twice previously reported
the presence of unwanted homeless persons. As the officers entered the church
parking lot, they observed a woman, later identified as Sexton, sitting in the
front entryway. The officers parked in front of the sidewalk leading to the
church entrance. Officer Kyle Kalb, who was driving a marked police car,
parked next to the gray minivan. None of the officers activated their emergency
lights or sirens.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1020 | October 19, 2018 Page 2 of 16 [3] The three officers, who were all in full police uniform, exited their vehicles and
approached the entryway. Sexton stood up with a surprised expression and
said something to another person, later identified as Eddy Moreno, who was
standing in the corner of the entryway. Sexton appeared unsteady on her feet.
Officer Clere asked Sexton for identification, while Officer Valderrama stepped
away to talk separately with Moreno. Officer Kalb apparently went back and
forth between the other two officers, but most of the time Officer Clere was
alone with Sexton. Sexton knelt down to look for her ID. While she was
looking through her black drawstring bag, she abruptly sat down. She was
unable to locate her ID. However, she found her friend’s ID and gave that to
Officer Clere. She told Officer Clere her name was Ashley Baker, which was
her maiden name, and provided her date of birth and the last four digits of her
social security number.
[4] Officer Clere observed that Sexton’s eyes were red and glassy. She had trouble
staying awake and told Officer Clere that she was getting sick and was ready to
go home. Officer Clere detected the odor of synthetic marijuana and asked
Sexton whether she had any narcotics. She replied that she did not and said
that he probably smelled her drink. Officer Clere stated that he did not think
the odor was from her drink because it was capped. Sexton stood up. Officer
Clere asked Sexton whether she had anything illegal on her. Sexton told him
that she had a taser and took it out of her jacket pocket and turned it on.
Officer Clere told her to put it away. She apologized and put it in her bag. She
sat down again. Officer Clere asked Sexton for her address and what her plans
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1020 | October 19, 2018 Page 3 of 16 for the rest of the evening were. Sexton told Officer Clere she was hungry
because she had not eaten dinner that night and joked that she was on “fat girl
status.” State’s Ex. 1. Officer Clere replied that he had not eaten dinner that
night either because he had reported early for work.
[5] Officer Clere stood next to Sexton for several minutes as he observed Moreno
interact with Officer Valderrama. Officer Clere then observed what appeared to
be a hand-rolled cigarette on the sidewalk near where Moreno had been
standing. Officer Clere picked it up and concluded that it was probably a
synthetic marijuana cigarette. This prompted Officer Clere to again ask Sexton
if she had any drugs on her. She said that she did not but volunteered that she
did have some food. Officer Clere asked her if she would mind if he looked
inside her bag. She said that she “didn’t care.” Id.
[6] Officer Clere opened the bag. Sexton asked him if her lighter was in there.
Officer Clere told her he did not see her lighter. Among the items that officer
Clere found in her bag was a digital scale with a white powdery substance on it.
Based on his training and experience, Officer Clere believed that the white
substance appeared to be methamphetamine. In his previous drug
investigations, Officer Clere had found digital scales in conjunction with illegal
narcotics and knew that they were used for weighing drugs to be sold. When he
took it out of the bag, Sexton told Officer Clere that she was “carrying [the
scale] for somebody else.” Id. Officer Clere put the scale and the synthetic
marijuana cigarette aside and requested that Sexton stand up and not put her
hands in her pockets. As Sexton started to stand up, she immediately put her
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1020 | October 19, 2018 Page 4 of 16 hands in her pockets. Officer Clere asked her to remove them, and she did. He
asked her if she had anything that would harm him. She said that she had a
knife in her back pocket, which Officer Clere removed. Sexton put her hands in
her jacket pockets again, so Officer Clere took hold of her arm to remove her
hand from her pocket. He proceeded to pat down Sexton and felt an object in
her right front jacket pocket. Officer Clere removed the object and found that it
was a clear plastic bag containing a crystal-like substance, which Officer Clere
believed to be methamphetamine. In the same jacket pocket, Officer Clere also
found a small clear green bag that contained a crystal-like substance.
[7] Officer Clere handcuffed Sexton and informed her of her Miranda rights. Sexton
acknowledged her rights and indicated that she was willing to answer questions.
Officer Clere asked her about her drug use, and Sexton replied that she had
smoked the night before. Officer Clere then did a thorough search of Sexton
and found a wallet that contained a small clear plastic bag with white pills
inside. Sexton informed Officer Clere that she had just gotten divorced and that
her married name was Sexton. The police arrested Sexton and took her to jail.
[8] Testing revealed that the crystal-like substance in the clear bag was 28.18 grams
of methamphetamine, and the crystal-like substance in the green bag was 1.79
grams of methamphetamine. One of the white pills from the plastic bag in
Sexton’s wallet was found to be Oxycodone, a schedule II controlled substance.
The State charged Sexton with level 3 felony possession of methamphetamine,
class A misdemeanor possession of a controlled substance, and class C
misdemeanor possession of paraphernalia. Sexton filed a motion to suppress all
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1020 | October 19, 2018 Page 5 of 16 the evidence, arguing that it was obtained as a result of an unconstitutional
search and seizure.
[9] After several continuances, Sexton’s jury trial was scheduled for November 6,
2017. On November 6, the trial court empaneled the jury, provided preliminary
instructions, and permitted the parties to present opening argument. The trial
court then held a hearing on Sexton’s motion to suppress and took the matter
under advisement. The trial court dismissed the class C misdemeanor
possession of paraphernalia charge on motion of the State. The following
morning, the trial court issued an order denying her motion to suppress and
proceeded with the jury trial. Sexton failed to appear in person either day. She
was tried in absentia, and the jury found her guilty as charged.
[10] In March 2018, the trial court held a sentencing hearing. The trial court found
that Sexton’s and her counsel’s statements regarding her drug addiction were
mitigating factors. The trial court found the following aggravating factors: (1)
Sexton’s prior criminal history and pending case for resisting law enforcement
and false informing; (2) she was on probation when she committed the instant
offenses; (3) she previously violated probation four times; (4) she failed to
appear two times in her case and at her trial; (5) she had used
methamphetamine since 2005, had progressed to daily use, and was using
methamphetamine when she failed to appear for trial; (6) she uses marijuana
daily and also uses Adderall; (7) her illegal drug use comprises separate and
distinct crimes each time she uses, showing a complete disregard for the law; (8)
she is a high risk to reoffend; and (9) other forms of sanctions had proven
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1020 | October 19, 2018 Page 6 of 16 unsuccessful. Tr. Vol. 3 at 92-94; Appellant’s App. Vol. 2 at 96-98. The trial
court sentenced Sexton to twelve years with three years suspended for the level
3 felony conviction and to a concurrent term of one year for the class A
misdemeanor conviction. This appeal ensued.
Discussion and Decision
Section 1 – The trial court did not err in admitting evidence. [11] Sexton argues that the trial court erred in admitting evidence seized from the
searches of her black drawstring bag and her person because it was seized in
violation of her right against unreasonable searches and seizures guaranteed in
the Fourth Amendment to the United States Constitution.1 “When reviewing a
trial court’s ruling on the admissibility of evidence resulting from an allegedly
illegal search, we do not reweigh the evidence, and we consider conflicting
evidence most favorable to the trial court’s ruling.” Conn v. State, 89 N.E.3d
1093, 1097 (Ind. Ct. App. 2017), trans. denied (2018). However, the
constitutionality of a search or seizure is a pure question of law that we review
de novo. Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014).
[12] The Fourth Amendment states,
1 Although Sexton refers to Article 1, Section 11 of the Indiana Constitution in her brief, she does not make a separate state constitutional argument. Therefore, she has waived any state constitutional claim. See Abel v. State, 773 N.E.2d 276, 278 n.1 (Ind. 2002) (concluding that when appellant presents no authority or independent analysis supporting the separate standard of the state constitution, the state constitutional claim is waived).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1020 | October 19, 2018 Page 7 of 16 The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
“The fundamental purpose of the Fourth Amendment ‘is to protect the
legitimate expectations of privacy that citizens possess in their persons, their
homes, and their belongings.’” Hines v. State, 981 N.E.2d 150, 153 (Ind. Ct.
App. 2013) (quoting Trotter v. State, 933 N.E.2d 572, 579 (Ind. Ct. App. 2010)).
This protection has been extended to the states through the Fourteenth
Amendment to the United States Constitution. Krise v. State, 746 N.E.2d 957,
961 (Ind. 2001). In general, the Fourth Amendment prohibits searches and
seizures conducted without a warrant supported by probable cause. Clark v.
State, 994 N.E.2d 252, 260 (Ind. 2013). As a deterrent mechanism, evidence
obtained without a warrant is not admissible in a prosecution unless the search
or seizure falls into one of the well-delineated exceptions to the warrant
requirement. Id. “Where a search or seizure is conducted without a warrant,
the State bears the burden to prove that an exception to the warrant
requirement existed at the time of the search or seizure.” Brooks v. State, 934
N.E.2d 1234, 1240 (Ind. Ct. App. 2010), trans. denied (2011).
[13] Encounters between law enforcement officers and citizens take a variety of
forms, not all of which implicate the protections of the Fourth Amendment.
Clark, 994 N.E.2d at 261. Consensual encounters in which a citizen voluntarily
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1020 | October 19, 2018 Page 8 of 16 interacts with an officer do not implicate the Fourth Amendment. Id.
However, nonconsensual encounters do, and such encounters typically involve
one of two levels of detention: a full arrest lasting longer than a short period of
time, or a brief investigative stop. Id. The former requires probable cause to be
permissible; the latter requires a lower standard of reasonable suspicion. Id.
[14] Sexton argues that the officers conducted an investigative detention without
reasonable suspicion of criminal activity and that her consent to search her bag
was invalid. Accordingly, she asserts that any evidence discovered as a result of
her unlawful detention must be excluded as “fruit of the poisonous tree.” See
Segura v. United States, 468 U.S. 796, 804 (1984) (noting that exclusionary rule
encompasses both “primary evidence obtained as a direct result of an illegal
search or seizure” and any “evidence later discovered and found to be
derivative of an illegality.”) This includes the digital scale found in her bag as
well as the methamphetamine discovered during the pat down and the
Oxycodone discovered by the search after she was handcuffed and informed of
her Miranda rights.
[15] The State counters that the trial court properly admitted evidence that the
officers obtained as a result of a consensual encounter with Sexton and a
consensual search of her bag. We note that Sexton does not challenge the pat
down search that revealed the methamphetamine. Further, the State asserts,
and Sexton does not dispute, that once Officer Clere discovered the digital scale
with suspected methamphetamine residue on it, he had probable cause to arrest
Sexton for a felony, and therefore could search her and her belongings incident
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1020 | October 19, 2018 Page 9 of 16 to that arrest. See Thomas v. State, 81 N.E.3d 621, 625 (Ind. 2017) (“An officer
may, however, arrest a suspect without a warrant if he observes the suspect
committing a crime, or if the officer has probable cause to believe that the
suspect has committed a felony.”). Thus, we focus on the nature of the
encounter until Officer Clere discovered the digital scale.
[16] Determining whether an encounter is consensual or involves some level of
detention “turns on an evaluation, under all the circumstances, of whether a
reasonable person would feel free to disregard the police and go about his or her
business.” Clark, 994 N.E.2d at 261 (quoting Finger v. State, 799 N.E.2d 528,
532 (Ind. 2003)). The test is an objective one; the question is not whether the
particular person actually felt free to leave, but whether the officer’s words and
actions would have conveyed to a reasonable person that he or she was free to
leave. Id. “Only when the officer, by means of physical force or show of
authority, has in some way restrained the liberty of a citizen may we conclude a
‘seizure’ has occurred.” Clarke v. State, 868 N.E.2d 1114, 1118 (Ind. 2007)
(quoting Florida v. Bostick, 501 U.S. 429, 434 (1991)). Circumstances that might
lead a reasonable person to believe that he or she was not free to leave include
“the threatening presence of several officers, the display of a weapon by an
officer, some physical touching of the person of the citizen, or the use of
language or tone of voice indicating that compliance with the officer’s request
might be compelled.” Clark, 994 N.E.2d at 261-62 (quoting Overstreet v. State,
724 N.E.2d 661, 664 (Ind. Ct. App. 2000), trans. denied). “[M]ere police
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1020 | October 19, 2018 Page 10 of 16 questioning does not constitute a seizure.” Clarke, 868 N.E.2d at 1118 (quoting
Bostick, 501 U.S. at 434).
[17] Here, although there were three officers involved, none of them activated their
sirens or lights when they parked at the church. There is no evidence that they
approached Sexton in a threatening manner or displayed their weapons.
Officer Clere spoke to Sexton while Officer Valderrama stepped away with
Moreno and did not interact with Sexton. Our review of Officer Clere’s body
camera video reveals that he calmly requested Sexton’s identification and
engaged her in conversation in a pleasant manner. Officer Clere did not order
her to do anything or use language or a tone of voice that would indicate that
Sexton’s compliance would be compelled. Sexton moved freely about during
their conversation. Officer Clere did not physically touch or restrain Sexton.
When she revealed her taser, he merely asked her to put it away. When Officer
Kalb was present, his speech and behavior was similar to Officer Clere’s.
Officer Clere asked Sexton if she would mind if he looked in her bag, and she
stated that she “didn’t care.” State’s Ex. 1. Based on an evaluation of all the
circumstances, we cannot say that the officers’ words or actions would convey
to a reasonable person that she was not free to disregard the officers and go
about her business. Accordingly, we conclude that her encounter with the
officers was consensual. See Rutledge v. State, 28 N.E.3d 281, 290 (Ind. Ct. App.
2015) (concluding that initial encounter was consensual where police did not
activate lights or siren, approached the parked car, did not display weapons,
and did not touch Rutledge); Cochran v. State, 843 N.E.2d 980, 984 (Ind. Ct.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1020 | October 19, 2018 Page 11 of 16 App. 2006) (“Asking questions is an essential part of police investigations. In
the ordinary course a police officer is free to ask a person for identification
without implicating the Fourth Amendment.”) (quoting Hiibel v. Sixth Judicial
Dist. Ct. of Nevada, Humboldt Cty., 542 U.S. 177, 185 (2004)), trans. denied;
Overstreet, 724 N.E.2d at 663 (concluding that no stop or seizure occurred where
officer stopped at a gas station without activating lights or siren, approached
Overstreet while he was putting air in his tires, asked him for identification, and
questioned him about what he had been doing).
[18] We note that Sexton does not dispute that she consented to a search of her bag,
but rather argues that her consent was invalid because she was not informed of
her right to counsel prior to the search pursuant to Pirtle v. State, 263 Ind. 16,
323 N.E.2d 634 (1975). However, Pirtle applies only when a person is in
custody, which is defined as a “formal arrest’ or a ‘restraint on freedom of
movement of the degree associated with a formal arrest.’” Meredith v. State, 906
N.E.2d 867, 873 (Ind. 2009) (quoting Luna v. State, 788 N.E.2d 832, 833 (Ind.
2003)). Given that we have concluded that her encounter with the police was
consensual, it follows that she cannot have been in custody for Pirtle purposes.
We conclude that the evidence found in Sexton’s bag and on her person was
not obtained in violation of her federal constitutional rights, and thus the trial
court did not err in admitting the evidence. Accordingly, we affirm Sexton’s
convictions.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1020 | October 19, 2018 Page 12 of 16 Section 2 – Sexton has failed to carry her burden to show that her sentence is inappropriate. [19] Sexton asks us to reduce her twelve-year sentence pursuant to Indiana
Appellate Rule 7(B), which states, “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.” When reviewing a sentence, our principal role is to
leaven the outliers rather than necessarily achieve what is perceived as the
correct result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).
“We do not look to determine if the sentence was appropriate; instead we look
to make sure the sentence was not inappropriate.” Conley v. State, 972 N.E.2d
864, 876 (Ind. 2012). “[S]entencing is principally a discretionary function in
which the trial court’s judgment should receive considerable deference.”
Cardwell, 895 N.E.2d at 1222. “Such deference should prevail unless overcome
by compelling evidence portraying in a positive light the nature of the offense
(such as accompanied by restraint, regard, and lack of brutality) and the
defendant’s character (such as substantial virtuous traits or persistent examples
of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). In
conducting our review, we may consider all aspects of the penal consequences
imposed by the trial court in sentencing, i.e., whether it consists of executed
time, probation, suspension, home detention, or placement in community
corrections, and whether the sentences run concurrently or consecutively.
Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010). In addition, as we assess
the nature of the offense and character of the offender, “we may look to any Court of Appeals of Indiana | Memorandum Decision 18A-CR-1020 | October 19, 2018 Page 13 of 16 factors appearing in the record.” Boling v. State, 982 N.E.2d 1055, 1060 (Ind.
Ct. App. 2013). Sexton has the burden to show that her sentence is
inappropriate. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on
reh’g 875 N.E.2d 218.
[20] Turning first to the nature of the offenses, we observe that “the advisory
sentence is the starting point the Legislature selected as appropriate for the
crime committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). Sexton was
convicted of possession of methamphetamine as a level 3 felony because she
possessed at least twenty-eight grams of methamphetamine. Ind. Code § 35-48-
4-6.1(d). The advisory sentence for a level 3 felony is nine years, with a range of
three to sixteen years. Ind. Code § 35-50-2-5. Sexton was given three years
above the advisory. However, the trial court demonstrated leniency by
suspending three years and imposing a concurrent sentence for Sexton’s
conviction for class A misdemeanor possession of a schedule II controlled
substance. We observe that Sexton had two bags of methamphetamine, one
with 28.18 grams and the other with 1.79 grams. In addition, she had a digital
scale, which suggests that she did not merely possess methamphetamine but
was dealing it. She illegally possessed more than one kind of drug, and there
was evidence of synthetic marijuana for which she was not charged. She misled
Officer Clere about her last name and denied knowledge of the
methamphetamine in the pockets of her jacket even though she had put her
hands in her pockets. These facts as to the nature of her crimes support a
sentence above the advisory.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1020 | October 19, 2018 Page 14 of 16 [21] As to Sexton’s character, she has two previous arrests as a juvenile for the status
offense of incorrigibility and one for being a runaway. As a twenty-five-year-
old adult, she has previous convictions for class B misdemeanor leaving the
scene of an accident and class A misdemeanor domestic battery in two separate
causes. She was on probation for these two offenses when she committed the
instant crimes. She violated her probation several times and failed to appear at
least five times. She also failed to appear in this case and admitted that she
failed to appear at trial because she was using methamphetamine instead. After
committing the instant offenses, she was arrested for two counts of resisting law
enforcement and false informing. Her past and current criminal conduct
indicate a disrespect for the law. Prior leniency has clearly not influenced her
behavior. She is classified in the high risk category to reoffend.
[22] Sexton argues that she is a drug addict, whose drug use has coincided with her
criminal activity, not a hardened criminal. We observe that her drug use has
gotten progressively worse to the point where she is using methamphetamine
every day and marijuana every other day. Tr. Vol. 3 at 70. Previous
opportunities for substance abuse treatment have proven unsuccessful. Sexton
does not suggest that incarceration will prevent her from receiving treatment for
her addiction issues, and in fact, it may present the best options for inpatient
treatment.
[23] Sexton also misled the trial court at sentencing by stating that she had “never
been in trouble before.” Id. at 78. She has four children, none of whom she has
custody of and none of whom she supports financially. Although she stated
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1020 | October 19, 2018 Page 15 of 16 that she had been previously employed at two different businesses and claimed
that she could get either job back, she had been unemployed for two months
prior to her arrest in this case. Id. at 70. We conclude that Sexton has failed to
carry her burden to show that her sentence is inappropriate in light of the nature
of the offenses and her character. Therefore, we affirm her sentence.
[24] Affirmed.
Najam, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1020 | October 19, 2018 Page 16 of 16