MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 13 2020, 9:09 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE James A. Hanson Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
James E. Starks, III, April 13, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1175 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Appellee-Plaintiff. David M. Zent, Judge Trial Court Cause No. 02D06-1902-F5-34
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1175 | April 13, 2020 Page 1 of 17 [1] James E. Starks, III (“Starks”) was convicted after a bifurcated jury trial of 1 carrying a handgun without a license as a Level 5 felony. He was sentenced to
four years in the Indiana Department of Correction (“the DOC”). Starks
appeals and raises the following restated issues for our review:
I. Whether the trial court abused its discretion in admitting into evidence a handgun found during a search of the vehicle Starks was driving;
II. Whether the State presented sufficient evidence to support Starks’s conviction; and
III. Whether Starks’s sentence is inappropriate in light of the nature of the offense and the character of the offender.
[2] We affirm.
Facts and Procedural History [3] On February 3, 2019, at approximately 8:50 p.m., Fort Wayne Police
Department (“FWPD”) Detective David Wilkins (“Detective Wilkins”) was on
patrol in an unmarked police vehicle and full uniform when he saw a white
Pontiac Grand Prix turn without activating its turn signal within 200 feet of the
intersection. Trial Tr. at 85-86, 100. Detective Wilkins testified that the vehicle
1 See Ind. Code § 35-47-2-1(a), (e)(2)(A).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1175 | April 13, 2020 Page 2 of 17 “was almost stopped before initiating a turn signal to go eastbound onto
Colerick [Street].” Id. at 86.
[4] Detective Wilkins activated his emergency lights to signal the Grand Prix to
stop. Id. FWPD Detective Christopher Hawthorne (“Detective Hawthorne”),
who was following Detective Wilkins’s vehicle, activated his emergency lights
as well. Id. at 146. Detective Hawthorne also sounded his siren “just to try to
catch the attention of the driver of the [Grand Prix].” Id. The Grand Prix
slowed down but did not stop. Id. Both detectives sounded their respective
sirens to get the driver’s attention. Id. at 87. Once the emergency lights had
been activated, it took the driver of the Grand Prix approximately ten seconds
to bring the vehicle to a stop. Id. at 88.
[5] Once the vehicle had stopped, but before Detective Wilkins could fully exit his
vehicle, the driver of the Grand Prix put his hands out of the driver-side
window so that they were in clear view of the detectives. Id. Detective Wilkins
thought that this was an unusual gesture and an indication that a weapon might
be inside of the vehicle. Id. at 89.
[6] Detective Hawthorne exited his vehicle and approached the passenger-side of
the Grand Prix. Id. at 146. Detective Wilkins approached the driver-side of the
vehicle. Id. at 89. As he did so, he noticed that the rear passenger windows
were so darkly tinted that he could not see into the vehicle, and he smelled the
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1175 | April 13, 2020 Page 3 of 17 2 odor of raw marijuana. Id. Detective Wilkins recognized the driver as Starks,
and he told Starks to lower all the Grand Prix’s windows. Id. at 90-91. Starks
was alone in the vehicle, and he appeared to be “very nervous.” Id. at 90, 149.
[7] When Starks lowered the windows, Detective Hawthorne saw a handgun
magazine in a cup holder in the center console of the vehicle. Id. at 146-47.
Detective Hawthorne then asked Starks if there were any weapons in the
vehicle, and Starks replied, “I’ll be honest with you, I don’t have a gun. It’s my
mom’s car.” Id. at 91. Detective Wilkins ordered Starks to exit the vehicle, and
Starks complied. Id. Detective Wilkins then performed a pat-down search for
the purpose of officer safety. Id. at 92. Detective Wilkins noticed that, even
though the temperature was about forty-nine degrees at the time of the traffic
stop, Starks’s hands were trembling. Id. Detective Hawthorne observed that
Starks kept glancing into the Grand Prix’s interior. Id. at 149. Starks told the
detectives that he did not have a valid driver’s license and that, prior to the
traffic stop, he had smoked a blunt – a hollowed-out cigar containing
marijuana. Id. at 147, 150.
[8] While Detectives Wilkins and Hawthorne were establishing initial contact with
Starks, FWPD Detective Shannon Hughes (“Detective Hughes”) arrived at the
scene. Id. at 122. As she approached the Grand Prix, she smelled the odor of
2 It is unclear from the record whether Detective Wilkins knew Starks from past encounters.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1175 | April 13, 2020 Page 4 of 17 marijuana emanating from the vehicle, and when she glanced into the vehicle,
she saw the handgun magazine in the cup holder. Id. at 122-23.
[9] Detectives Wilkins and Hughes searched the vehicle. Id. at 92. In addition to
the loaded handgun magazine observed in the cup holder – which contained
twelve rounds of ammunition – they found small amounts of marijuana on the
front passenger seat belt. Id. at 93-94. In the glove box, Detective Wilkins
found a 9mm caliber, semi-automatic handgun with another loaded magazine
inserted into its grip. Id. at 98. Unlike the twelve-round magazine found in the
cup holder, which was later determined to be the standard magazine for the
handgun, the loaded magazine that was inserted into the handgun was
extended and held eighteen rounds. Id. at 98, 125, 137.
[10] While Detectives Wilkins and Hughes were searching the vehicle, Starks’s
mother, Tracy Brown (“Brown”), arrived at the scene in response to a phone
call made to her by Detective Hawthorne. Id. at 112, 135. Brown showed the
detectives her concealed-carry license that she kept behind the sun visor in the
Grand Prix. Id. The detectives confirmed that she owned the Grand Prix. Id.
at 111. Brown told the detectives that she owned the 9mm handgun and the
twelve-round magazine, but that she did not own the extended magazine found
inside the handgun in the glove box. Id. at 137. She also stated that she would
place her handgun in the glove box when she was using her vehicle. Id. at 136.
Brown also noted that she sometimes forgot to retrieve her handgun from the
glove box when leaving the vehicle. Id. Brown told the detectives that Starks
did not have permission to drive her vehicle. Id. When she testified at Starks’s
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1175 | April 13, 2020 Page 5 of 17 trial, however, she stated that her initial statement to the detectives was
incorrect and that, in actuality, Starks could “drive [her vehicle] anytime he
wants to[.]” Id.
[11] On February 7, 2019, the State charged Starks with possession of marijuana, a
Class A misdemeanor, carrying a handgun without a license, a Class A
misdemeanor, and an information enhancing the offense to a Level 5 felony by
virtue of a prior conviction. Appellant’s App. Vol. II at 2-4, 6. Starks was tried to
a jury in a bifurcated trial on April 18, 2019. Trial Tr. at 2. During the first
phase of the trial, the State offered into evidence Exhibits 4 and 5 – photographs
of the 9mm caliber handgun found in the Grand Prix’s glove box. Id. at 94-95.
Starks’s counsel stated that he had “[n]o objection” to their admission into
evidence. Id. at 95. The State also offered Exhibit 7 – the handgun itself and
the two magazines found in the Grand Prix. Id. at 124. Starks’s counsel stated
that he had no objection to the admission of the exhibit into evidence. Id. at
125.
[12] Starks was found guilty of carrying a handgun without a license as a Class A
misdemeanor but not guilty of possession of marijuana. Id. at 193-195;
Appellant’s App. Vol. II at 122-24. In the second phase of the trial, the jury found
that because Starks had a prior conviction for carrying a handgun without a
license, his misdemeanor should be enhanced to a Level 5 felony. Trial Tr. at
195, 200; Appellant’s App. Vol. II at 122-24.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1175 | April 13, 2020 Page 6 of 17 [13] Starks was sentenced on May 14, 2019. Sent. Tr. at 2; Appellant’s App. Vol. II at
181. The trial court entered a judgment of conviction for Level 5 felony
carrying a handgun without a license and sentenced Starks to four years
executed in the DOC. Sent. Tr. at 9-10; Appellant’s App. Vol. II at 181, 183.
Starks now appeals.
Discussion and Decision
I. Admission of Evidence [14] Starks claims that Detective Wilkins had no basis to initiate a traffic stop and
that the warrantless search of the vehicle he was driving, and the subsequent
seizure of the handgun found in the glove box, violated his rights under both
the Fourth Amendment to the United States Constitution and Article I, Section
11 of the Indiana Constitution. We note, however, that Starks did not file a
pretrial motion to suppress evidence, and he appeals following his conviction
and sentence. As such, his argument is more properly framed as whether the
trial court abused its discretion in admitting into evidence the handgun obtained
as a result of the challenged search. Hirshey v. State, 852 N.E.2d 1008, 1012
(Ind. Ct. App. 2006), trans. denied. Our standard of review of rulings on the
admissibility of evidence is essentially the same whether the challenge is made
by a pretrial motion to suppress or by trial objection: we do not reweigh the
evidence, and we consider conflicting evidence most favorable to the trial
court’s ruling. Id.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1175 | April 13, 2020 Page 7 of 17 [15] Here, however, the record reveals that Starks failed to object to testimony
regarding the loaded handgun found in the glove box or to the admission of the
handgun into evidence. For example, when Detective Hughes testified that
“Detective Wilkins . . . advised [her] that he observed a handgun, a loaded
handgun in the glove box of the vehicle,” and that she secured the handgun as
evidence, Starks’s counsel did not object to the testimony. Trial Tr. at 123.
When the State introduced the handgun into evidence, Starks’s counsel stated
he had “[n]o objection.” Id. at 124-25.
[16] By failing to object to the admission of the handgun, Starks failed to preserve
his challenge to its admissibility. See Brown v. State, 929 N.E.2d 204, 206-07
(Ind. 2010). “A contemporaneous objection at the time the evidence is
introduced at trial is required to preserve the issue for appeal, whether or not
the appellant has filed a pretrial motion to suppress.” Id. at 207. “The purpose
of this rule is to allow the trial judge to consider the issue in light of any fresh
developments and also to correct any errors.” Id.
[17] Nevertheless, a claim that has been waived by a defendant’s failure to raise a
contemporaneous objection can be reviewed on appeal if the reviewing court
determines that a fundamental error occurred. Id.
The fundamental error exception is “extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.” The error claimed must either “make a fair trial impossible” or constitute “clearly blatant violations of basic and
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1175 | April 13, 2020 Page 8 of 17 elementary principles of due process.” This exception is available only in “egregious circumstances.”
Id. (internal citations omitted). An error in ruling on a motion to exclude
improperly seized evidence, however, is not per se fundamental error. Id.
“Indeed, because improperly seized evidence is frequently highly relevant, its
admission ordinarily does not cause us to question guilt.” Id.
[18] In Brown, the Indiana Supreme Court found that Brown’s claimed error
regarding the admission of evidence did not rise to the level of fundamental
error where there was no claim of “fabrication of evidence”; “willful
malfeasance on the part of the investigating officers”; or “that the evidence is
not what it appears to be.” Id. Our Supreme Court held that where a defendant
makes no contention “that he did not receive a fair trial, other than his assertion
that the evidence was the product of an unconstitutional search and seizure[,]”
fundamental error will not be found. See id. at 208 (finding no fundamental
error where Brown failed to contend that he received an unfair trial based on
grounds other than the admission of evidence).
[19] In this case, Starks failed to object to the admission of the handgun at trial, does
not assert fundamental error on appeal, and fails to raise any grounds to support
a finding of fundamental error. Accordingly, we decline to review his challenge
to the admissibility of the handgun.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1175 | April 13, 2020 Page 9 of 17 II. Sufficiency of the Evidence [20] Next, Starks challenges the sufficiency of the evidence as to his possession of
the handgun. His argument is that there was a “complete lack of evidentiary
support connecting [him] to the handgun or the extended magazine[.]”
Appellant’s Br. at 25.
[21] It is well-established that when we review the sufficiency of the evidence to
support a conviction, we consider only the probative evidence and reasonable
inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.
2007). It is not our role as an appellate court to assess witness credibility or to
weigh the evidence. Id. We will affirm the conviction unless no reasonable
factfinder could find the elements of the crime proven beyond a reasonable
doubt. Id.
[22] The carrying a handgun without a license statute provides, in relevant part, that
“a person shall not carry a handgun in any vehicle or on or about the person’s
body without being licensed under this chapter to carry a handgun.” Ind. Code
§ 35-47-2-1(a). To convict Starks of Level 5 felony carrying a handgun without
a license, the State was required to prove beyond a reasonable doubt that he
knowingly or intentionally carried a handgun in any vehicle or on or about his
body without being licensed, and that he had been previously convicted of
carrying a handgun without a license. Ind. Code § 35-47-2-1(e)(2)(A)(i).
[23] Possession of a firearm or other contraband may be either actual or
constructive. Henderson v. State, 715 N.E.2d 833, 835 (Ind. 1999). Actual
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1175 | April 13, 2020 Page 10 of 17 possession occurs when a defendant has direct physical control over the
item. Id. Constructive possession occurs when the defendant has the capability
to maintain dominion and control over the item, and he intends to maintain
dominion and control over it. Negash v. State, 113 N.E.3d 1281, 1291 (Ind. Ct.
App. 2018). Starks did not have direct physical control over the handgun found
in his mother’s car. Thus, the question is whether he constructively possessed
it.
[24] Where a defendant has exclusive possession of the premises where the item was
found, an inference arises that he knew of the presence of the item and was
capable of controlling it. Id. However, if possession of the premises is not
exclusive, the inference arises only if additional circumstances indicate the
defendant’s knowledge of the item and the ability to control it. Id. Examples of
these additional circumstances include incriminating statements by the
defendant, attempted flight or furtive gestures, a drug manufacturing setting,
proximity of the defendant to the item, whether the item is in plain view, and
other items belonging to the defendant in close proximity to the item. Id.
These are merely examples of additional circumstances that may show
constructive possession. Cannon v. State, 99 N.E.3d 274, 279-80 (Ind. Ct. App.
2018), trans. denied. Other circumstances may just as reasonably demonstrate
the requisite knowledge and intent. Id.
[25] Here, the evidence showed that Starks was driving the Grand Prix with a
loaded twelve-round magazine, in plain view, next to him in a cup holder.
When Detective Wilkins activated his emergency lights to initiate the traffic
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1175 | April 13, 2020 Page 11 of 17 stop, Starks did not stop his vehicle immediately but instead slowly came to a
stop. Trial Tr. at 146. Detective Wilkins testified that when an individual fails
to pull over immediately, it “heightens my awareness . . . that they’re secreting
a weapon, or they’re retrieving a weapon.” Id. at 88. When Starks pulled his
vehicle to the side of the road, Starks immediately put his hands outside of the
driver’s-side window. Detective Wilkins testified that this was an unusual
gesture that led him to believe that there was a weapon in the vehicle. Id. at 89.
He further testified that Starks exhibited a higher degree of nervousness than the
detective usually encountered during traffic stops. Id. at 90.
[26] When Detective Hawthorne asked Starks if he had a weapon, Starks did not tell
the detective that there was a handgun in the glove box. Instead, he stated, “I’ll
be honest with you, I don’t have a gun. It’s my mom’s car.” Id. at 91. After
Starks was removed from the vehicle, Starks continued to glance at the vehicle’s
interior. Id. at 149. Detective Hawthorne testified that “[i]t’s common for
individuals that have illegal contraband . . . to look towards it to see if it’s
visible [to] law enforcement . . . .” Id. at 149-50.
[27] The handgun that was found by the detectives in the glove box of the Grand
Prix was loaded with an extended magazine that held eighteen rounds of
ammunition. The standard twelve-round magazine had been removed from the
handgun. While Starks’s mother, Brown, testified that the handgun and the
twelve-round magazine belonged to her, she stated that the extended magazine
was not hers and that she did not place the extended magazine into the
handgun. Id. at 137-38. She also testified that Starks knew that she kept the
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1175 | April 13, 2020 Page 12 of 17 gun in her vehicle. Id. at 138. Detective Wilkins testified that, at the time of
the traffic stop, the handgun had been placed in the glove box at an angle,
which was odd because, according to Detective Wilkins, “any movement from
[the vehicle] . . . would have that gun evening up and the barrel would [lay] flat
against that surface in the glove box.” Id. at 97.
[28] Based upon the foregoing, we conclude that the evidence presented by the State
permitted the jury to conclude beyond a reasonable doubt that Starks knew the
handgun was in the vehicle he was driving and that he had the ability and intent
to control it. The State established that Starks constructively possessed the
handgun. We find the evidence sufficient to support Starks’s conviction.
III. Inappropriate Sentence [29] Starks next asserts that his sentence is inappropriate. Pursuant to Indiana
Appellate Rule 7(B), this court “may revise a sentence authorized by statute if,
after due consideration of the trial court’s decision, the [c]ourt finds that the
sentence is inappropriate in light of the nature of the offense and the character
of the offender.” Our Supreme Court has explained that the principal role of
appellate review should be to attempt to leaven the outliers, “not to achieve a
perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225
(Ind. 2008). We independently examine the nature of Stark’s offense and his
character under Appellate Rule 7(B) with substantial deference to the trial
court’s sentence. Satterfield v. State, 33 N.E.3d 344, 355 (Ind. 2015). “In
conducting our review, we do not look to see whether the defendant’s sentence
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1175 | April 13, 2020 Page 13 of 17 is appropriate or if another sentence might be more appropriate; rather, the test
is whether the sentence is ‘inappropriate.’” Barker v. State, 994 N.E.2d 306, 315
(Ind. Ct. App. 2013), trans. denied. Whether a sentence is inappropriate
ultimately depends upon “the culpability of the defendant, the severity of the
crime, the damage done to others, and myriad other factors that come to light
in a given case.” Cardwell, 895 N.E.2d at 1224. Starks bears the burden of
persuading us that his sentence is inappropriate. Id.
[30] “As to the nature of the offense, the advisory sentence is the starting point the
legislature has selected as an appropriate sentence for the crime committed.”
Kunberger v. State, 46 N.E.3d 966, 973 (Ind. Ct. App. 2015). Here, Starks was
convicted of Level 5 felony carrying a handgun without a license. A person
who commits a Level 5 felony shall be imprisoned for a fixed term of between
one and six years, with the advisory sentence being three years. Ind. Code § 35-
50-2-6(b). Therefore, the maximum sentence Starks could have received from
the trial court was six years. The trial court imposed a sentence of four years.
Thus, Starks’s executed sentence was two years less than the maximum he
could have received.
[31] As this court has recognized, the nature of the offense is found in the details
and circumstances of the commission of the offense and the defendant’s
participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). The nature
of the offense refers to a defendant’s actions in comparison with the elements of
the offense. Cardwell, 895 N.E.2d at 1224. When determining the
appropriateness of a sentence that deviates from an advisory sentence, “we
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1175 | April 13, 2020 Page 14 of 17 consider whether there is anything more or less egregious about the offense as
committed by the defendant that ‘makes it different from the typical offense
accounted for by the legislature when it set the advisory sentence.’” Moyer v.
State, 83 N.E.3d 136, 142 (Ind. Ct. App. 2017) (quoting Holloway v. State, 950
N.E.2d 803, 807 (Ind. Ct. App. 2011)), trans. denied.
[32] Starks maintains that his sentence is inappropriate in light of the nature of the
offense because the “firearm was never utilized by [him] or otherwise employed
to threaten the safety of any particular individual or the community.”
Appellant’s Br. at 26. While the nature of Starks’s offense was not particularly
egregious, we would not characterize his offense as minor. Starks was driving
with a suspended license. Trial Tr. at 156. When the detective asked Starks if
there were any weapons in the vehicle, Starks did not disclose that he had a
handgun in the glove box, but instead replied, “I’ll be honest with you, I don’t
have a gun. It’s my mom’s car.” Id. at 91. While Starks’s offense may not be
particularly egregious, it is Starks’s character that convinces us that his four-
year sentence is appropriate.
[33] The character of the offender is found in what we learn of the offender’s life and
conduct. Perry, 78 N.E.3d at 13. When considering the character of the
offender, one relevant fact is the defendant’s criminal history. Johnson v. State,
986 N.E.2d 852, 857 (Ind. Ct. App. 2013). Starks’s juvenile history began when
he was fifteen years old and includes charges of leaving home without
permission, false informing, and interfering with a drug or alcohol screening
test. Appellant’s Conf. App. Vol. II at 172. His adult criminal history includes
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1175 | April 13, 2020 Page 15 of 17 nine misdemeanor convictions. Between 2013 and the present, he was
convicted of disorderly conduct as a Class B misdemeanor; battery as a Class A
misdemeanor; false informing as a Class B misdemeanor; knowingly or
intentionally operating a motor vehicle without ever receiving a license as a
Class C misdemeanor; carrying a handgun without a license as a Class A 3 misdemeanor; resisting law enforcement, as a Class A misdemeanor; and
possession of marijuana, once as a Class B misdemeanor and twice as a Class A
misdemeanor. Id. at 173-74. In four of his previous cases, his suspended
sentence was revoked, and in one case in which he was placed on probation, his
probation was revoked. Id. at 177.
[34] Starks’s criminal history shows that prior punishments and leniency have not
deterred him from committing further similar crimes, which shows poor
character. Additionally, at sentencing, the trial court noted that Starks did not
plead guilty and did not accept responsibility or express remorse for his crime.
Sent. Tr. at 10. As such, we conclude that Starks’s sentence is not inappropriate
in light of his character.
3 The trial court incorrectly determined at sentencing that it could not consider Starks’s prior conviction for carrying a handgun without a license because it was an element of his present crime. See, e.g., Pedraza v. State, 887 N.E.2d 77, 80 (Ind. 2018) (when a trial court uses the same criminal history as an aggravator and as support for an habitual offender finding, it does not constitute impermissible double enhancement of the offender’s sentence).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1175 | April 13, 2020 Page 16 of 17 [35] Starks has not shown that his sentence is inappropriate in light of the nature of
the offense and the character of the offender. We, therefore, affirm the four-
year sentence imposed by the trial court.
[36] Affirmed.
Bailey, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1175 | April 13, 2020 Page 17 of 17