MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 09 2018, 6:16 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Gregory L. Fumarolo Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana
Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Charles D. Burrage, October 9, 2018 Appellant-Defendant, Court of Appeals Case No. 02A04-1712-CR-2877 v. Appeal from the Allen Superior Court State of Indiana, The Honorable John F. Surbeck, Appellee-Plaintiff. Jr., Judge Trial Court Cause No. 02D06-1705-F4-32
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A04-1712-CR-2877 | October 9, 2018 Page 1 of 15 Case Summary [1] When police stopped the car in which Charles D. Burrage was riding as a
backseat passenger, Burrage jumped out and fled. After chasing down Burrage,
an officer returned to the vehicle and discovered a handgun on the back bench
seat, in plain view, near where Burrage had been seated before he exited the
vehicle and ran from police. Burrage filed a pretrial motion to suppress the
handgun, challenging the legality of the traffic stop, and the trial court denied
the motion. Following a jury trial, Burrage was convicted of Level 4 felony
unlawful possession of a firearm by a serious violent felon and Class A
misdemeanor resisting law enforcement. He now appeals his convictions,
raising the following restated issues:
I. Whether the trial court abused its discretion when it admitted the firearm into evidence at trial; and
II. Whether the State presented sufficient evidence to support Burrage’s conviction for unlawful possession of a firearm by a serious violent felon.
[2] We affirm.
Facts & Procedural History [3] While driving her four-door black Dodge Magnum on the evening of May 10,
2017, Christina Green picked up her teenage son, I.C.C., from work. Green’s
co-worker, Ayanna Weaver, was already seated in the front passenger seat, and
I.C.C. entered the vehicle and sat in the back seat behind Weaver. As a favor
Court of Appeals of Indiana | Memorandum Decision 02A04-1712-CR-2877 | October 9, 2018 Page 2 of 15 for a friend, Green then drove to the Hickory Creek Apartments to pick up a
man and give him a ride to her own house, where he was to meet other
individuals. When Green arrived at the Hickory Creek Apartments, the man,
who Green did not know, but who was later identified as Burrage, entered her
car and sat in the back seat, on the driver’s side.
[4] At that time, Fort Wayne Police Department (FWPD) officers, along with
officers from the United States Marshal’s Task Force, were conducting
surveillance at the Hickory Creek Apartments, having received information that
Burrage, who had a pending felony arrest warrant for a violation of his parole,
was likely to be in that area. Specifically, FWPD Detective Derrick Demorest
had obtained and executed a search warrant for “ping” information on
Burrage’s phone, and it revealed that the phone was in the Hickory Creek
complex. Motion to Suppress Transcript at 27. During surveillance at the
apartment complex, FWPD Detective James Chambers observed a man
matching Burrage’s general description get into the backseat of the Dodge
Magnum. Already in the car, in addition to the driver, was a front seat
passenger and another backseat passenger, who officers later identified as
Green’s son, I.C.C.
[5] The Dodge Magnum left the Hickory Creek Apartments parking lot heading
eastbound on Lower Huntington Road. Some of the surveilling officers
followed, while others stayed, in case it was not Burrage who left in the
Magnum. While following the Magnum, FWPD Detective Sergeant Mark
Brooks observed it “cross the yellow line, the solid yellow line towards the
Court of Appeals of Indiana | Memorandum Decision 02A04-1712-CR-2877 | October 9, 2018 Page 3 of 15 center four different times in about a half a mile” on Lower Huntington Road.
Transcript Vol. 1 at 115. The driver of the Dodge Magnum did not signal a lane
change or a turn on these occasions. Because Detective Sergeant Brooks was in
plain clothes and driving an unmarked FWPD vehicle that was not equipped
with emergency lights, he was not permitted under Indiana law to initiate a
traffic stop, so he notified other officers that he had observed the vehicle “cross
the center line four times.” Id. at 116.
[6] The Dodge Magnum then turned northbound onto Airport Expressway, and
Detective Michael Long, who was in full uniform and was driving a vehicle
equipped with lights and a siren, activated his vehicle’s lights and initiated a
traffic stop. According to Green, Burrage told her from the backseat, “[D]on’t
stop,” and she replied, “I’m not a criminal, I don’t have anything to hide,” at
which time she pulled the car over to the right shoulder. Id. at 158, 161. I.C.C.
noticed that, as the vehicle was pulling over, Burrage was trying to get out of
the car, and I.C.C. told Burrage to “calm down and not to get out [sic] the car.”
Id. at 175. As Burrage was exiting the Dodge Magnum, he pulled a gun out of
his pants and tried to hand it to I.C.C., but I.C.C. turned away and did not take
it. Burrage then exited the car and ran.
[7] Meanwhile, as the Dodge Magnum stopped on the shoulder, Detective Long
saw an individual exit the vehicle from the back driver’s-side door and run in a
northeast direction down into an embankment. Detective Long ordered the
individual to stop and chased him a short distance before he deployed a taser
causing the man to fall. Detective Long arrested the man for resisting law
Court of Appeals of Indiana | Memorandum Decision 02A04-1712-CR-2877 | October 9, 2018 Page 4 of 15 enforcement and identified the individual as Burrage. Detective Long’s vehicle
was equipped with an in-car camera that captured video of the traffic stop and
chase.
[8] Detective Long returned to the Dodge Magnum and saw that the remaining
three occupants were inside but had their hands extended outside of the
windows. Green was in the driver’s seat, Weaver was in the front passenger
seat, and I.C.C. was seated behind Weaver. As Detective Long approached,
I.C.C. told him that the person who ran had left a handgun in the vehicle.
Detective Long looked inside and saw a black handgun laying on the middle of
the back bench-style seat. The individuals in the car told him that they did not
know the man who fled. Detective Long instructed the passengers to exit the
vehicle, and they were patted down for officer safety. No other weapons were
found on the occupants or in the vehicle.
[9] Detective Long retrieved the handgun, which was a loaded .40 caliber
semiautomatic. There was a bullet in the chamber and additional bullets in the
magazine. During a search of Burrage, police discovered a baggie in his pocket
containing a green weedy substance, later identified as marijuana.
[10] On May 16, 2017, the State charged Burrage with Count I, Level 4 felony
unlawful possession of a firearm by a serious violent felon, Count II, Class A
misdemeanor resisting law enforcement, and Count III, Class B misdemeanor
possession of marijuana. In October 2017, Burrage filed a motion to suppress
the handgun and marijuana, asserting that the search and seizure violated his
Court of Appeals of Indiana | Memorandum Decision 02A04-1712-CR-2877 | October 9, 2018 Page 5 of 15 state and federal constitutional rights. At the hearing, Burrage’s position was
that the traffic stop was invalid because (1) the radioed traffic infractions were
that the Dodge Magnum “crossed the center line” a number of times, (2) but
the road was actually a three-lane road in the relevant area – one each direction
and a center turn lane – such that the Magnum did not cross any center line or
violate any statute that required it to stay on the right half of the road, and (3)
therefore, “there was no violation that justified the stop [of] the vehicle,” and
the evidence should be suppressed. Motion to Suppress Transcript at 24, 30. The
State responded that traffic violations justified the stop because officers
observed the Magnum fail to stay in its lane. Furthermore, even if there was no
traffic violation, the stop was valid for several other reasons: (1) there was a
warrant out for Burrage, and officers had a reasonable suspicion that he was in
the car; (2) Burrage had no standing as a passenger to challenge the stop; and
(3) Burrage abandoned the weapon when he ran from the car and thereby
relinquished all interest in the property. Following a hearing, the trial court
issued an order denying Burrage’s motion to suppress, finding:
Defendant matched the description of the fugitive sought, the traffic stop was valid, the handgun seized was in plain view, was abandoned and Defendant had no standing to object to a search.
Appellant’s Appendix Vol. II at 71.
[11] Prior to trial, the trial court granted the State’s motion to dismiss Count III. At
trial, when Detective Sergeant Brooks was cross-examined about having
radioed to Detective Long that the Magnum drove “left of center” on four
Court of Appeals of Indiana | Memorandum Decision 02A04-1712-CR-2877 | October 9, 2018 Page 6 of 15 occasions, Detective Sergeant Brooks explained that the vehicle had driven
“into the turn lane four times.” Transcript Vol. 1 at 117. Detective Long
testified that after learning that “the vehicle had committed a lane violation four
different times” on Lower Huntington Road, he moved ahead of the
surveillance detective and initiated the traffic stop. Id. at 126. Green testified
that when she pulled over to the shoulder, “the person that was in my backseat
jumped out of my car, took off running,” and she heard her son scream,
“[T]here’s a gun back here.” Id. at 158, 161. She then turned and saw the gun
for the first time. Green testified that the gun was not hers nor her son’s, who
was less than eighteen years old. A man named Marcel Wheeler, who had
been in a relationship with Green on-and-off for six years, testified that he
owned the Dodge Magnum, but had not driven it in years. Wheeler testified
that the gun was not his and that he did not own a gun or have a permit to carry
one. The handgun was admitted into evidence over Burrage’s objection. No
fingerprints were found on the gun during forensic testing.
[12] The jury found Burrage guilty of resisting law enforcement and carrying a
handgun without a license. Burrage waived his right to further proceed with the
jury trial and admitted to a prior qualifying felony required to prove he was a
serious violent felon in possession of a firearm. After entering judgments of
conviction, the trial court sentenced Burrage to six years on Count I and one
year on Count II, to run consecutively. Burrage now appeals.
Court of Appeals of Indiana | Memorandum Decision 02A04-1712-CR-2877 | October 9, 2018 Page 7 of 15 Discussion and Decision
I. Admission of Evidence [13] Burrage argues the trial court abused its discretion when it admitted the
handgun into evidence at trial over his objection. In ruling on admissibility
following the denial of the motion to suppress, the trial court considers the
foundational evidence presented at trial. Carpenter v. State, 18 N.E.3d 998, 1001
(Ind. 2014). It also considers the evidence from the suppression hearing that is
favorable to the defendant only to the extent it is uncontradicted at trial. Id.
Because the trial court is best able to weigh the evidence and assess witness
credibility, the appellate court will review the trial court’s rulings on
admissibility for abuse of discretion and reverse only if a ruling is “clearly
against the logic and effect of the facts and circumstances and the error affects a
party’s substantial rights.” Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013). “But
the ultimate determination of the constitutionality of a search or seizure is a
question of law that we consider de novo.” Carpenter, 18 N.E.3d at 1001.
[14] An investigatory stop of a citizen by a police officer does not violate that
citizen’s constitutional rights if the officer has a reasonably articulable suspicion
of criminal activity. State v. Lynch, 961 N.E.2d 534, 536 (Ind. Ct. App. 2012).
Although “[r]easonable suspicion is a ‘somewhat abstract’ concept that is not
readily reduced to a ‘neat set of legal rules,’” it is well settled that a police
officer may briefly detain a person whom the officer believes has committed an
infraction or ordinance violation. Id. at 536-37 (citing Ind. Code § 34-28-5-3,
stating that “[w]henever a law enforcement officer believes in good faith that a
Court of Appeals of Indiana | Memorandum Decision 02A04-1712-CR-2877 | October 9, 2018 Page 8 of 15 person has committed an infraction or ordinance violation, the law enforcement
officer may detain that person for a sufficient time”). A decision to stop a
vehicle is valid so long as the officer’s “on-the-spot evaluation reasonably
suggests that lawbreaking occurred.” Id. at 537. The determination of
reasonable suspicion requires de novo review on appeal. Id.
[15] Burrage contends that the officers did not have reasonable suspicion to initiate a
traffic stop of the Dodge Magnum and that his convictions for unlawful
possession of a handgun and resisting law enforcement therefore must be
reversed. In particular, Burrage relies on the evidence that Detective Brooks
had radioed to other officers and written in his report that the Dodge Magnum
“crossed the center line” as it traveled on Lower Huntington Road, but since
Lower Huntington Road was a three-lane road, “there was no center line to
cross.” Appellant’s Brief at 14, 21; Defendant’s Ex. B. Thus, Burrage claims,
“there was no traffic violation” and the stop was pretextual such that
“everything that happened after the vehicle was stopped . . . is subject to be
suppressed.” Id. at 21. As he did at the motion to suppress hearing, Burrage
urges that Ind. Code § 9-21-8-2 is the relevant statute and that there is no
evidence that he violated it. That statute provides in pertinent part:
Upon all roadways of sufficient width, a vehicle shall be driven upon the right half of the roadway except as follows:
(3) Upon a roadway divided into three marked lanes for traffic under the rules applicable to a roadway divided into three marked lanes.
Court of Appeals of Indiana | Memorandum Decision 02A04-1712-CR-2877 | October 9, 2018 Page 9 of 15 I.C. § 9-21-8-2(a)(3) (emphasis added). He argues that because Lower
Huntington Road is a three-lane roadway, “the driver of the Magnum was not
required by statute to drive upon the right half of the roadway,” and, in any
event, “there was no evidence presented . . . that the vehicle crossed over into
the opposite lane of travel.” Appellant’s Brief at 20. Consequently, he argues the
stop was invalid, and the firearm should not have been admitted at trial. We
disagree.1
[16] Burrage’s exclusive focus on the “crossed the center line” evidence is too
narrow. That is, while there was testimony that Detective Sergeant Brooks had
radioed that the vehicle was “left of center” or “crossed the center line” – which
Burrage claims is impossible given that it is a three-lane road – Detective
Sergeant Brooks gave additional and more explanatory testimony that he
observed the vehicle “cross the yellow line, the solid yellow line towards the
center four different times in about a half a mile” and described that it had
driven “into the turn lane four times.” Transcript Vol. 1 at 115, 117. He also
stated that the driver never signaled a lane change. This evidence indicates that
1 Before proceeding with our analysis of the validity of the traffic stop, we note that, at the trial court level, the State argued that Burrage lacked standing to challenge the constitutionality of the search under both the 4th Amendment, because he had no reasonable expectation of privacy in the vehicle in which he was a passenger, as well as under Article 1 Section 11 of the Indiana Constitution, because Burrage had disclaimed any interest in the handgun. In denying Burrage’s motion to suppress, the trial court agreed and based its decision, in part, on the determination that Burrage “had no standing to object to a search.” Appellant’s Appendix Vol. II at 71. Although we, like the trial court, have concerns about Burrage’s standing to challenge the search, we do not address it in our decision because the State on appeal does not raise any issue or argument concerning standing. See Bradley v. State, 4 N.E.3d 831, 838 (Ind. Ct. App. 2014) (in resolving a claim of unlawful search and seizure, an appellate court should not sua sponte invoke lack of standing), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 02A04-1712-CR-2877 | October 9, 2018 Page 10 of 15 the vehicle moved or veered into the center turning lane, which was marked
with turning arrows, although the driver did not signal a lane change or turn.
Additionally, Detective Sergeant Brooks testified that, in his training and
experience, this type of improper lane use “could mean that the driver was
impaired or distracted, which are both reasons to cause traffic accidents.” Id. at
115. Given these facts, we find that the officers had reasonable suspicion to
initiate a stop of the Dodge Magnum. See Pridemore v. State, 71 N.E.3d 70, 74-
75 (Ind. Ct. App. 2017) (finding reasonable suspicion existed to stop a vehicle
that had crossed into median area located between opposite lanes of travel,
although officer testified to witnessing vehicle “cross left of center”).
[17] Furthermore, as the State points out, Burrage’s argument that the driver did not
violate I.C. § 9-21-8-2(a) because the vehicle did not leave “the right half of the
roadway” ignores another statute, I.C. § 9-21-8-11, which provides rules for
roadways divided into three or more lanes. It states:
Whenever a roadway has been divided into three (3) or more clearly marked lanes for traffic, the following rules apply:
(1) A vehicle shall be driven as nearly as practicable entirely within a single lane and may not be moved from the lane until the person who drives the vehicle has first ascertained that the movement can be made with safety.
(2) Upon a roadway that is divided into three (3) lanes, a vehicle may not be driven in the center lane except under any of the following conditions:
Court of Appeals of Indiana | Memorandum Decision 02A04-1712-CR-2877 | October 9, 2018 Page 11 of 15 (A) When overtaking and passing another vehicle where the roadway is clearly visible and the center lane is clear of traffic within a safe distance.
(B) In preparation for a left turn.
(C) Where the center lane is at the time allocated exclusively to traffic moving in the direction the vehicle is proceeding and is signposted to give notice of the allocation.
I.C. § 9-21-8-11.2
[18] Here, Detective Sergeant Brooks observed the Dodge Magnum “cross the
yellow line, the solid yellow line towards the center four different times in about
a half a mile” on Lower Huntington Road and not display a turn signal.
Transcript Vol. 1 at 115. This indicates that, in a short distance, the vehicle
repeatedly left its lane of travel and moved “towards the center,” which was a
turning lane, but the vehicle neither slowed to a stop nor signaled a turn or lane
change. The driver thus failed to comply with I.C. § 9-21-8-11. Burrage argues
on appeal that because the radio call and written report referred to the vehicle
as having crossed the center line, the State on appeal was offering “new and
different reasons” to “legitimize the stop,” namely I.C. § 9-21-8-11, which he
claims should be rejected as contrary to the evidence. Reply Brief at 5, 7. It was
2 I.C. § 9-21-8-11 was amended effective July 1, 2018, but we refer to the statute in effect at the time Burrage was charged in 2017.
Court of Appeals of Indiana | Memorandum Decision 02A04-1712-CR-2877 | October 9, 2018 Page 12 of 15 not a “new and different” reason nor contrary to the evidence, however, as
Detective Long explained at the motion to suppress hearing that what occurred
was not only crossing a center line; it was also considered “not maintaining a
lane.” Motion to Suppress Transcript at 24. For the reasons stated, the officers
had reasonable suspicion to initiate the traffic stop of the Dodge Magnum, and
the trial court did not abuse its discretion when it admitted the firearm into
evidence at trial.3
II. Sufficiency of the Evidence [19] Burrage argues that the evidence was insufficient to support his conviction for
unlawful possession of a firearm by a serious violent felon. 4 In reviewing
sufficiency of the evidence claims, this court does not reweigh the evidence or
assess the credibility of witnesses. Causey v. State, 808 N.E.2d 139, 143 (Ind. Ct.
App. 2004). We consider only the evidence most favorable to the verdict,
together with all reasonable and logical inferences to be drawn therefrom. Id.
We will affirm the conviction “if there is substantial evidence of probative value
to support the conclusion of the trier-of-fact.” Id. The evidence need not
3 The State also asserts that, even if the officers’ stop for a violation of traffic laws was unsound, other reasons justified that stop, including: (1) “the officers had reasonable suspicion justifying an identity check of the occupants to confirm that Burrage was in the vehicle”; (2) “the seizure [of the handgun] was attenuated from the stop”; and (3) discovery of the gun was a result of Burrage’s own conduct, namely placing it on the seat, which left it in plain view. Appellee’s Brief at 14, 16, 19. Because we find that the stop was justified for traffic violations, we do not reach the State’s arguments. 4 Burrage concedes that “[i]f this [c]ourt finds that the traffic stop was justified, . . . his actions do constitute the offense of Resisting Law Enforcement.” Appellant’s Brief at 21. Having found that the stop was valid, we confine our sufficiency analysis to the unlawful possession of a firearm by a serious violent felon conviction.
Court of Appeals of Indiana | Memorandum Decision 02A04-1712-CR-2877 | October 9, 2018 Page 13 of 15 overcome every reasonable hypothesis of innocence. Sallee v. State, 51 N.E.3d
130, 133 (Ind. 2016).
[20] To convict Burrage of Level 4 felony unlawful possession of a firearm by a
serious violent felon, the State was required to prove that (1) Burrage was a
serious violent felon as defined in Indiana and (2) he knowingly or intentionally
possessed a firearm. See Ind. Code § 35-47-4-5. Burrage stipulated at trial that
he was a serious violent felon under Indiana law. Thus, on appeal, Burrage’s
claim “deals solely with the sufficiency of the evidence as it relates to Burrage
being in possession of the firearm,” which was found on the rear bench seat,
near where he had been seated before he exited the car. Appellant’s Brief at 22.
[21] Here, at trial, I.C.C. testified that, as the vehicle was being stopped by police,
Burrage “said he had a gun” and pulled the handgun out of his pants, from
“inside the belt.” Transcript Vol. 1 at 173-74. I.C.C. further testified that
Burrage “tried to hand it to me,” at which time I.C.C. “stopped looking” and
did not see Burrage set the handgun on the seat, but saw it there after Burrage
had exited the car. After Burrage opened the door and fled, Green heard I.C.C.
yell, “There’s a gun back here.” Id. at 161. Green testified that the gun did not
belong to her or to I.C.C., and Wheeler, who owned but did not drive the car,
testified that it was not his.
[22] Burrage concedes that I.C.C.’s testimony was direct evidence “that [he] actually
possessed the firearm” and that I.C.C.’s testimony was supported by Green’s
testimony. Appellant’s Brief at 24. But he nevertheless contends that the State
Court of Appeals of Indiana | Memorandum Decision 02A04-1712-CR-2877 | October 9, 2018 Page 14 of 15 failed to prove he knowingly or intentionally possessed a firearm because (1) the
State was unable to provide evidence that Burrage was armed when he came
out of the Hickory Creek Apartments; (2) there was no testimony that Burrage
made furtive gestures as the vehicle was being stopped; (3) three other
individuals remained in the automobile during the time Officer Long chased
Burrage on foot, and “[t]his period was long enough for any of the three to
place the firearm on the backseat of the vehicle”; and (4) there were no
fingerprints linking Burrage to the firearm. Id. We find that Burrage’s
arguments in this regard are challenges to I.C.C.’s eyewitness testimony to
seeing Burrage with the gun in the back seat right before he opened the door
and ran. On appeal, we cannot reweigh evidence or judge witness credibility.
Causey, 808 N.E.2d at 143. I.C.C.’s testimony was sufficient to show that
Burrage possessed the handgun and left it in the car when he fled. Accordingly,
the State presented sufficient evidence to convict Burrage of Level 4 felony
unlawful possession of a handgun by a serious violent felon.
[23] Judgment affirmed.
Brown, J. and Tavitas, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A04-1712-CR-2877 | October 9, 2018 Page 15 of 15