Derek Core v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 6, 2015
• Docket: 91A05-1406-CR-265
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Mar 06 2015, 9:51 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Steven Knecht Gregory F. Zoeller Vonderheide & Knecht, P.C. Attorney General of Indiana Lafayette, Indiana Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Derek Core, March 6, 2015

Appellant-Defendant, Court of Appeals Case No. 91A05-1406-CR-265 v. Appeal from the White Superior Court State of Indiana, The Honorable Robert B. Mrzlack, Appellee-Plaintiff Judge

Cause No. 91D01-1310-FC-180

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 91A05-1406-CR-265 | March 6, 2015 Page 1 of 12 Statement of the Case [1] Derek Core appeals his conviction, following a jury trial, for robbery, as a Class

C felony. He presents two issues for our review, which we revise and restate as

follows:

1. Whether the trial court abused its discretion when it admitted certain evidence, which Core characterizes as the fruit of an unconstitutional traffic stop.

2. Whether his sentence, which was enhanced after Core pleaded guilty to being an habitual offender, is inappropriate in light of the nature of the offense and his character.

We affirm.

Facts and Procedural History [2] On October 3, 2013, Core, Omika Thurman, and Jason Roar traveled from

Indianapolis to White County, Indiana, to rob a bank. Core had previously

selected White County because Core believed that it would have fewer officers

than Indianapolis, which would translate into a longer police-response time to

the robbery. White County also has access to Interstate 65, which Core

believed would make it easier to flee from the crime. After Thurman had

scoped out two banks, Core selected Farmers State Bank (“the Bank”) in

Brookston as the three’s target because it had only two tellers, both of whom

were female. After Core had selected the Bank but before the three effected the

robbery, to help conceal Core’s identity Thurman bought Core an Indianapolis

Court of Appeals of Indiana | Memorandum Decision 91A05-1406-CR-265 | March 6, 2015 Page 2 of 12 Colts baseball cap. The two then attempted, with limited success, to remove

the stitching on the cap “so it wouldn’t be identifiable.” Tr. at 276.

[3] Shortly before 1:00 p.m., Core and Roar entered through the Bank’s front

doors, while Thurman, the getaway driver, waited outside in a Chevrolet

Suburban. Once inside, Core—wearing sunglasses, embroidered jeans, gloves,

the Colts baseball cap, and dark tennis shoes with white soles—jumped onto the

counter and screamed at the tellers to “get back.” Id. at 209. Core and Roar

then took money from the tellers’ drawers, including certain sums of “bait”

money.1 Tr. at 14. The two did not have bags and stuffed the money into their

pockets. Core also took a bag that belonged to a teller, which, among other

things, contained her driver’s license and credit cards. Core and Roar then left

the Bank and fled in the Suburban. Core directed Thurman to southbound

State Road 43, which leads to Interstate 65.

[4] Indiana State Trooper Darrick Scott received a call at his post, located on State

Road 43 near Interstate 65, of a robbery in progress at the Bank. The call did

not include any information about the getaway vehicle, but a later transmission

stated that the two assailants were black males. Trooper Scott activated the

lights and siren of his police vehicle and drove northbound on State Road 43.

On his way to the Bank, Trooper Scott observed a number of vehicles pull off to

the side of the road and yield the right of way to him. Most drivers of the

1 Bait money means uncirculated currency with prerecorded serial numbers.

Court of Appeals of Indiana | Memorandum Decision 91A05-1406-CR-265 | March 6, 2015 Page 3 of 12 yielding vehicles, he noticed, looked around inquiringly, but one driver, a

female in a southbound Suburban later identified as Thurman, attempted to

hide her face behind the vehicle’s steering wheel and her left arm. Trooper

Scott then checked his rearview mirror and noticed that the Suburban did not

have a license plate attached to its rear bumper. Trooper Scott could see a

silhouette in the Suburban’s darkly tinted rear window but could not discern

whether the vehicle had a license plate. At that time, Trooper Scott did not see

anyone but Thurman in the Suburban.

[5] Aware that a number of other officers were also in route to the Bank, Trooper

Scott decided to make a U-Turn and “inquire more about the vehicle

southbound that [he had] observed.” Tr. at 15. As he pulled behind the

Suburban, with lights and siren still activated, the vehicle reentered the roadway

and began to flee southbound on State Road 43. As Trooper Scott pursued the

vehicle, he eventually managed to get near enough to the rear of the vehicle to

detect the numbers of a temporary license plate in the rear window.

[6] During the pursuit, Trooper Scott observed the Suburban speed, cross the center

line, and fail to yield to him. Further, he saw the silhouettes of two men in the

backseat of the Suburban, “popping up and down, just peeking and looking and

observing to see what was going on.” Tr. at 19. After several miles of pursuit,

in which several other officers joined, officers disabled the Suburban. When the

vehicle came to a stop, Core and Roar fled on foot, but officers apprehended

both. Thurman remained in the Suburban.

Court of Appeals of Indiana | Memorandum Decision 91A05-1406-CR-265 | March 6, 2015 Page 4 of 12 [7] When apprehended, Core was wearing gloves, and officers recovered $7,267.00

on his person, which included the Bank’s bait money. In a later inventory

search of the Suburban, among other items, officers recovered a Colts baseball

cap with the emblem partially removed, sunglasses, money ties with the Bank’s

emblem, a black leather bag, and several cards that evinced the name of the

Bank’s teller, whose bag was taken by Core during the robbery.

[8] On October 3, 2013, the State charged Core with two counts of robbery, one

count as a Class C felony and one count as a Class B felony. And, on

November 4, 2013, the State filed a third count that sought to have Core

adjudicated an habitual offender.2

[9] After the State had charged him, on January 14, 2014, Core moved to suppress:

all the property seized by arresting officers, all observations made by the arresting officers, all statements made by [Core], and all evidence taken from [Core] after he was detained and arrested into the White County Jail.

Appellant’s App. at 29. As the basis for his motion, Core stated that:

the initial stop of the [Suburban, of which Core was a passenger,] by arresting officers violated [Core’s] rights under the Fourth Amendment of the Constitution of the United States and Article I, Section 11 of the Indiana Constitution because officers had no

2 The State amended Count II twice and Count III once. As amended, Count II alleged that three officers had suffered injuries as a result of the robbery.

Court of Appeals of Indiana | Memorandum Decision 91A05-1406-CR-265 | March 6, 2015 Page 5 of 12 reasonable suspicion or probable cause to make the initial stop of the vehicle.

Id.

[10] Core acknowledged in his memorandum in support of his motion to suppress

that Trooper Scott had

testified that he thought the driver was trying to hide from him . . . [and] that he also noticed that the [Suburban] did not have a license plate on the rear bumper. He testified that[,] for this reason, he turned around and decided to stop the vehicle. [3]

Id. at 34. Nevertheless, Core “conten[ded] that the Officer stopped the

[Suburban] based on the fact that there was a black female driving the vehicle

and lacked any probable cause that the vehicle committed any crime nor [sic]

having any reasonable suspicion that criminal activity was afoot.” Id. at 35.

[11] The trial court, however, found that “Trooper Scott and other police officers

had reasonable suspicion to pursue the driver of the SUV[] for several reasons,”

including, among others, “to investigate whether the occupants of the SUV

were involved in the bank robbery . . . ; [and] to investigate the infraction of

improper display of a license plate.” Id. at 40. Thus, the court denied Core’s

3 Similarly, at trial, Trooper Scott testified that “[he] notice[d] [the Suburban] did not have a license plate on [the] vehicle, the rear part of the vehicle. So, that was going to be my reason to stop the vehicle.” Tr. at 293.

Court of Appeals of Indiana | Memorandum Decision 91A05-1406-CR-265 | March 6, 2015 Page 6 of 12 motion, and the case proceeded to jury trial, which was held from April 29

through May 1.4

[12] At trial, Core renewed his objections to the admissibility of the evidence

obtained after the initial stop of the Suburban. The court noted Core’s

objection as a continuing one that “renew[ed] [the] grounds set forth in the

Motion to Suppress,” but it “overrule[d] the objection and again denie[d] the

Motion to Suppress.” Tr. at 293. The court further informed Core that he had

preserved the issue for appellate review.5

[13] At the conclusion of the trial, the jury convicted Core of robbery, as a Class C

felony, but acquitted him of robbery, as a Class B felony, and Core admitted

that he was an habitual offender. On May 28, the court held a sentencing

hearing. At the conclusion of the sentencing hearing, the court found in

aggravation that (1) Core had seven prior convictions as an adult, five of which

were felonies, including convictions for auto theft, robbery, and confinement;

(2) Core committed the October 1 robbery while on parole for his prior robbery

and confinement convictions;6 (3) previous attempts at rehabilitation, both as a

juvenile and as an adult, had failed; and (4) Core’s conduct in the White

County Jail while awaiting trial had resulted in a loss of privileges and a

4 On the first day of Core’s trial, he elected to proceed pro se but have standby counsel present. On the second day of his trial, Core elected to have standby counsel conduct the remainder of the proceedings. 5 Thus, we disagree with the State that Core has waived this issue for appeal. 6 Core was released on parole from the Indiana Department of Correction on August 21, 2013.

Court of Appeals of Indiana | Memorandum Decision 91A05-1406-CR-265 | March 6, 2015 Page 7 of 12 pending battery charge. The court found in mitigation that (1) Core had

expressed remorse; (2) Core had obtained a GED despite having a learning

disability; and (3) Core had issues with his health. The court found that the

aggravators outweighed the mitigators, and it sentenced Core to eight years

executed in the Department of Correction, which it enhanced by an additional

twelve years for a total aggregate term of twenty years executed. This appeal

ensued.

Discussion and Decision Issue One: Admission of Evidence

[14] Core first contends that the trial court abused its discretion when it admitted

certain evidence against him. As he did in his motion to suppress and at trial,

core asserts that Trooper Scott lacked reasonable suspicion to conduct the initial

stop of the Suburban, which violated Core’s rights to be free of an unreasonable

seizure. Everything else—pursuit included—Core argues, would not have

occurred but for the initial, unconstitutional stop of the Suburban. We cannot

agree.

[15] “The general admission of evidence at trial is a matter we leave to the discretion

of the trial court.” Clark v. State, 994 N.E.2d 252, 259-60 (Ind. 2013). As we

explained in J.K. v. State, 8 N.E.3d 222, 228 (Ind. Ct. App. 2014), “[a] trial

court’s decision to admit or exclude evidence is reviewed for an abuse of

discretion. A trial court abuses its discretion when its decision is clearly against

Court of Appeals of Indiana | Memorandum Decision 91A05-1406-CR-265 | March 6, 2015 Page 8 of 12 the logic and effect of the facts and circumstances or when the trial court has

misinterpreted the law.”

[16] Further, as our supreme court has stated:

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. An officer’s decision to stop a vehicle is valid so long as his on-the- spot evaluation reasonably suggests that lawbreaking occurred.

Meredith v. State, 906 N.E.2d 867, 869-70 (Ind. 2009) (citations omitted).

[17] Here, Core argues that the trial court abused its discretion when it held that

reasonable suspicion supported the initial stop of the Suburban. But our

supreme court has previously held that Indiana law requires license plates,

interim or permanent, “be displayed upon the rear of the vehicle, securely

fastened, in a horizontal position.” Id. at 870 (quotation marks omitted).

“[P]lacing a license plate on the inside of the back window clearly does not

satisfy the requirement that license plates be displayed upon the rear of the

vehicle.” Id. at 872 (emphasis in original) (quotation marks omitted). And, if

one’s plate is “not displayed appropriately,” an officer may properly stop that

person. Id. at 871, 873. This is so even if the “officer would [not] have

otherwise made the stop but for ulterior suspicions or motives.” Turner v. State,

862 N.E.2d 695, 699-700 (Ind. Ct. App. 2007).

Court of Appeals of Indiana | Memorandum Decision 91A05-1406-CR-265 | March 6, 2015 Page 9 of 12 [18] At the suppression hearing, Trooper Scott testified that he pulled in behind the

Suburban “[t]o inquire more about the plate.” Tr. at 35. And, at trial, Trooper

Scott testified that he planned to stop the Suburban because “[he] notice[d the

vehicle] did not have a license plate.” Tr. at 293. Thus, we hold that “the

initial stop [of the Suburban] due to the suspected license plate display violation

was proper and the trial court did not err in refusing to suppress the resulting

evidence on this basis.”7 Meredith, 906 N.E.2d at 873.

Issue Two: Sentencing

[19] Core also argues that his sentence is inappropriate in light of the nature of the

offense and his character. Article 7, Sections 4 and 6 of the Indiana

Constitution “authorize[] independent appellate review and revision of a

sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind.

Ct. App. 2007) (alteration in original). This appellate authority is implemented

through Indiana Appellate Rule 7(B). Id. Revision of a sentence under Rule

7(B) requires the appellant to demonstrate that his sentence is inappropriate in

light of the nature of his offenses and his character. Ind. Appellate Rule 7(B);

Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess the

trial court’s recognition or non-recognition of aggravators and mitigators as an

7 For the same reasons Core cannot demonstrate error under the federal constitution he cannot demonstrate error under the Indiana Constitution. See, e.g., Sowers v. State, 724 N.E.2d 588, 591-92 (Ind. 2000); see also Turner, 862 N.E.2d at 699-700 (holding that, under the Indiana Constitution, “[p]olice officers may stop a vehicle when they observe minor traffic violations. . . . If there is an objectively justifiable reason [for the stop], then the stop is valid whether or not the police officer would have otherwise made the stop but for ulterior suspicions or motives.”).

Court of Appeals of Indiana | Memorandum Decision 91A05-1406-CR-265 | March 6, 2015 Page 10 of 12 initial guide to determining whether the sentence imposed was inappropriate.

Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006). However, “a

defendant must persuade the appellate court that his or her sentence has met

th[e] inappropriateness standard of review.” Roush, 875 N.E.2d at 812

(alteration original).

[20] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

sentence to the circumstances presented, and the trial court’s judgment “should

receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222, 1224

(Ind. 2008). The principal role of appellate review is to attempt to “leaven the

outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the

end of the day turns on “our sense of the culpability of the defendant, the

severity of the crime, the damage done to others, and myriad other facts that

come to light in a given case.” Id. at 1224.

[21] Here, Core contends that we should revise his sentence because his “actions

were no worse than those involved in any other case of this kind.” Appellant’s

Br. at 30. In support, he points out that he was unarmed and that he did not

physically harm anyone at the Bank. But we are not persuaded. Core, with the

help of two others, planned a bank robbery and executed it in the middle of the

day, during the Bank’s operating hours. He and his confederates then fled

along a well-traveled road in their vehicle. The fact that these actions did not

result in another’s physical injury does not detract from the seriousness of

Core’s crime. Indeed, as the trial court stated at Core’s sentencing hearing,

Core inflicted “devastating” fear on the Bank’s employees that “they will carry

Court of Appeals of Indiana | Memorandum Decision 91A05-1406-CR-265 | March 6, 2015 Page 11 of 12 with them [for] the rest of their lives.” Tr. at 567-68. Core’s sentence is not

inappropriate in light of the nature of the offense.

[22] Core also asserts that his sentence is inappropriate because he has a

“redeemable character.” Appellant’s Br. at 30. Core’s criminal history,

however, does not support that assertion. Core has a juvenile history and seven

adult convictions, including five felony offenses. He has been adjudicated an

habitual offender. Moreover, Core was on parole for a prior robbery that he

had committed when he committed the current robbery. And, while in jail for

his current crime, Core’s conduct resulted both in a loss of privileges and in the

filing of more charges against him. As the trial court noted, Core has had a

number of opportunities to rehabilitate himself, both as a juvenile and as an

adult, but he has not done so. Thus, we cannot say that Core’s sentence is

inappropriate in light of his character.

[23] Affirmed.

[24] Mathias, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 91A05-1406-CR-265 | March 6, 2015 Page 12 of 12