MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 29 2016, 9:22 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald E.C. Leicht Gregory F. Zoeller Kokomo, Indiana Attorney General of Indiana
Chandra K. Hein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Theodore Hannibal, April 29, 2016 Appellant-Defendant, Court of Appeals Cause No. 34A02-1510-CR-1625 v. Appeal from the Howard Superior Court State of Indiana, The Honorable George A. Appellee-Plaintiff. Hopkins, Judge Trial Court Cause No. 34D04-1404-FC-50
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1625 |34A02-1510-CR-1625 Page 1 of 8 Case Summary [1] Theodore Hannibal appeals his convictions for Class C felony battery resulting
in serious bodily injury, Class D felony battery resulting in bodily injury, and
Class D felony resisting law enforcement. We affirm.
Issue [2] The sole restated issue is whether the trial court properly admitted evidence
obtained as a result of the traffic stop.
Facts [3] On April 8, 2014, Kokomo Police Officer Roy Smith, who is a detective for the
drug task force, observed Hannibal in a vehicle parked at a gas station in
Howard County. Because Officer Smith and the other police officers who were
with him at the time believed Hannibal had a suspended driver’s license, they
“called a patrol officer that was in the area and let them know that he was
potentially driving.” Tr. p. 67. Kokomo Police Officer Austin McClain, who
was in a marked police vehicle and wearing a police uniform on that same date,
“saw the vehicle Mr. Hannibal was known to drive pass in front of me . . . At
this time, he had longer deadlocks [sic]. I could see all of that through the back
window of the SUV that I knew him to drive.” Id. at 25. Officer McClain had
stopped Hannibal a week earlier and learned he had a suspended license.
[4] Officer McClain activated his lights, and Hannibal pulled over immediately.
Officer McClain, who was alone, then approached the driver’s side of
Hannibal’s vehicle, and Hannibal opened the door because his window did not Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1625 |34A02-1510-CR-1625 Page 2 of 8 operate properly. Officer McClain observed Hannibal holding a lit cigarette in
one hand and a cell phone in the other. Officer McClain instructed Hannibal to
extinguish his cigarette, put away the phone, and exit the vehicle; Hannibal
refused. Officer McClain repeated the instructions, and Hannibal refused
again. “[Hannibal] said that he was going to call somebody and tell them that
he was going to jail.” Id. at 28.
[5] Officer McClain “could tell that the tensions were definitely rising,” and he
believed that, if the situation escalated, the cigarette could be a weapon and he
did not want either himself or Hannibal to get burned. Id. Officer McClain
“knocked [the cigarette] out of his hand . . . and then [] went for the cell
phone.” Id. Officer McClain does not like people to have cell phones during
traffic stops because he does not want an “ambush situation” if the person calls
other people and because he has learned cell phones can be a cover for stun
guns. Id. at 29.
[6] By this time, Officer Alex Harper had arrived and was watching through the
passenger-side window of Hannibal’s vehicle. According to Officer Harper,
Hannibal “appeared aggravated [and] agitated.” Id. at 47. As Officer McClain
reached for the cell phone, Hannibal lunged out of the vehicle at him. Officer
McClain testified, “[Hannibal’s] arms are moving forcefully and quickly
enough that I, I cannot get ahold of both of them to place them, handcuffs
around his hands . . . .” Id. at 31. As Officer McClain and Hannibal struggled,
Officer Harper climbed through the passenger side of Hannibal’s vehicle.
Officer Harper attempted to detain Hannibal, but Hannibal was “flailing [and]
Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1625 |34A02-1510-CR-1625 Page 3 of 8 pushing away.” Id. at 50. Neither officer was able to get Hannibal under
control. As the officers struggled with Hannibal, the three fell to the ground.
Officer Harper landed on his elbow, dislocating his shoulder. Officer McClain
continued to struggle with Hannibal until several detectives observed the
struggle and stopped to assist him.
[7] Officer Harper testified his dislocated shoulder caused him “the worst pain [he
has] ever, ever felt. Almost unbearable.” Id. at 53. He was unable to work for
five or six weeks while he participated in physical therapy. Officer McClain
suffered an abrasion on his knee.
[8] The State charged Hannibal with: (1) Class C felony battery resulting in serious
bodily injury; (2) Class D felony battery resulting in bodily injury; (3) Class D
felony resisting law enforcement; and (4) Class A misdemeanor driving while
suspended. The State later amended the probable cause affidavit to include a
count of Class A misdemeanor possession of a synthetic drug or synthetic drug
lookalike substance as Count V. Hannibal pled guilty to resisting law
enforcement and driving while suspended, but the trial court granted his motion
to withdraw the plea. On August 18 and 19, 2015, Hannibal was tried by a
jury. The jury found him guilty of counts I, II, and III; the State dismissed
counts IV and V. The trial court sentenced Hannibal to an aggregate sentence
of seven years in the Department of Correction. Hannibal appeals his
convictions.
Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1625 |34A02-1510-CR-1625 Page 4 of 8 Analysis [9] Hannibal contends the traffic stop was an unreasonable seizure that violated his
rights as guaranteed by the Fourth and Fourteenth Amendments to the United
States Constitution and Article I, Section 11 of the Indiana Constitution. At the
outset, we note that Hannibal merely cites to the general proposition that claims
made under the Indiana Constitution are reviewed independently from claims
made under the United States Constitution. He then “asks this Court to look at
the totality of the circumstances surrounding his traffic stop on April 8, 2014.”
Appellant’s Br. p. 9. He does not make an independent argument for his claim
under our state constitution. Because Indiana Courts interpret and apply
Article 1, Section 11 of the Indiana Constitution separately from its federal
counterpart, Hannibal has waived that argument. Francis v. State, 764 N.E.2d
641, 646-47 (Ind. 2002).
[10] We next note that Hannibal failed to object at trial to the evidence he now
argues was inadmissible. “A contemporaneous objection at the time the
evidence is introduced at trial is required to preserve the issue for appeal . . . .”
Brown v. State, 929 N.E.2d 204, 206 (Ind. 2010). “[A] failure to timely object to
the erroneous admission of evidence at trial will procedurally foreclose the
raising of such error on appeal unless the admission constitutes fundamental
error.” Stephenson v.
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 29 2016, 9:22 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald E.C. Leicht Gregory F. Zoeller Kokomo, Indiana Attorney General of Indiana
Chandra K. Hein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Theodore Hannibal, April 29, 2016 Appellant-Defendant, Court of Appeals Cause No. 34A02-1510-CR-1625 v. Appeal from the Howard Superior Court State of Indiana, The Honorable George A. Appellee-Plaintiff. Hopkins, Judge Trial Court Cause No. 34D04-1404-FC-50
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1625 |34A02-1510-CR-1625 Page 1 of 8 Case Summary [1] Theodore Hannibal appeals his convictions for Class C felony battery resulting
in serious bodily injury, Class D felony battery resulting in bodily injury, and
Class D felony resisting law enforcement. We affirm.
Issue [2] The sole restated issue is whether the trial court properly admitted evidence
obtained as a result of the traffic stop.
Facts [3] On April 8, 2014, Kokomo Police Officer Roy Smith, who is a detective for the
drug task force, observed Hannibal in a vehicle parked at a gas station in
Howard County. Because Officer Smith and the other police officers who were
with him at the time believed Hannibal had a suspended driver’s license, they
“called a patrol officer that was in the area and let them know that he was
potentially driving.” Tr. p. 67. Kokomo Police Officer Austin McClain, who
was in a marked police vehicle and wearing a police uniform on that same date,
“saw the vehicle Mr. Hannibal was known to drive pass in front of me . . . At
this time, he had longer deadlocks [sic]. I could see all of that through the back
window of the SUV that I knew him to drive.” Id. at 25. Officer McClain had
stopped Hannibal a week earlier and learned he had a suspended license.
[4] Officer McClain activated his lights, and Hannibal pulled over immediately.
Officer McClain, who was alone, then approached the driver’s side of
Hannibal’s vehicle, and Hannibal opened the door because his window did not Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1625 |34A02-1510-CR-1625 Page 2 of 8 operate properly. Officer McClain observed Hannibal holding a lit cigarette in
one hand and a cell phone in the other. Officer McClain instructed Hannibal to
extinguish his cigarette, put away the phone, and exit the vehicle; Hannibal
refused. Officer McClain repeated the instructions, and Hannibal refused
again. “[Hannibal] said that he was going to call somebody and tell them that
he was going to jail.” Id. at 28.
[5] Officer McClain “could tell that the tensions were definitely rising,” and he
believed that, if the situation escalated, the cigarette could be a weapon and he
did not want either himself or Hannibal to get burned. Id. Officer McClain
“knocked [the cigarette] out of his hand . . . and then [] went for the cell
phone.” Id. Officer McClain does not like people to have cell phones during
traffic stops because he does not want an “ambush situation” if the person calls
other people and because he has learned cell phones can be a cover for stun
guns. Id. at 29.
[6] By this time, Officer Alex Harper had arrived and was watching through the
passenger-side window of Hannibal’s vehicle. According to Officer Harper,
Hannibal “appeared aggravated [and] agitated.” Id. at 47. As Officer McClain
reached for the cell phone, Hannibal lunged out of the vehicle at him. Officer
McClain testified, “[Hannibal’s] arms are moving forcefully and quickly
enough that I, I cannot get ahold of both of them to place them, handcuffs
around his hands . . . .” Id. at 31. As Officer McClain and Hannibal struggled,
Officer Harper climbed through the passenger side of Hannibal’s vehicle.
Officer Harper attempted to detain Hannibal, but Hannibal was “flailing [and]
Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1625 |34A02-1510-CR-1625 Page 3 of 8 pushing away.” Id. at 50. Neither officer was able to get Hannibal under
control. As the officers struggled with Hannibal, the three fell to the ground.
Officer Harper landed on his elbow, dislocating his shoulder. Officer McClain
continued to struggle with Hannibal until several detectives observed the
struggle and stopped to assist him.
[7] Officer Harper testified his dislocated shoulder caused him “the worst pain [he
has] ever, ever felt. Almost unbearable.” Id. at 53. He was unable to work for
five or six weeks while he participated in physical therapy. Officer McClain
suffered an abrasion on his knee.
[8] The State charged Hannibal with: (1) Class C felony battery resulting in serious
bodily injury; (2) Class D felony battery resulting in bodily injury; (3) Class D
felony resisting law enforcement; and (4) Class A misdemeanor driving while
suspended. The State later amended the probable cause affidavit to include a
count of Class A misdemeanor possession of a synthetic drug or synthetic drug
lookalike substance as Count V. Hannibal pled guilty to resisting law
enforcement and driving while suspended, but the trial court granted his motion
to withdraw the plea. On August 18 and 19, 2015, Hannibal was tried by a
jury. The jury found him guilty of counts I, II, and III; the State dismissed
counts IV and V. The trial court sentenced Hannibal to an aggregate sentence
of seven years in the Department of Correction. Hannibal appeals his
convictions.
Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1625 |34A02-1510-CR-1625 Page 4 of 8 Analysis [9] Hannibal contends the traffic stop was an unreasonable seizure that violated his
rights as guaranteed by the Fourth and Fourteenth Amendments to the United
States Constitution and Article I, Section 11 of the Indiana Constitution. At the
outset, we note that Hannibal merely cites to the general proposition that claims
made under the Indiana Constitution are reviewed independently from claims
made under the United States Constitution. He then “asks this Court to look at
the totality of the circumstances surrounding his traffic stop on April 8, 2014.”
Appellant’s Br. p. 9. He does not make an independent argument for his claim
under our state constitution. Because Indiana Courts interpret and apply
Article 1, Section 11 of the Indiana Constitution separately from its federal
counterpart, Hannibal has waived that argument. Francis v. State, 764 N.E.2d
641, 646-47 (Ind. 2002).
[10] We next note that Hannibal failed to object at trial to the evidence he now
argues was inadmissible. “A contemporaneous objection at the time the
evidence is introduced at trial is required to preserve the issue for appeal . . . .”
Brown v. State, 929 N.E.2d 204, 206 (Ind. 2010). “[A] failure to timely object to
the erroneous admission of evidence at trial will procedurally foreclose the
raising of such error on appeal unless the admission constitutes fundamental
error.” Stephenson v. State, 29 N.E.3d 111, 118 (Ind. 2015). Hannibal seems to
acknowledge this by quoting the above-referenced general principle and refers
to the right to be free from unreasonable search and seizure as a “fundamental”
one. Tr. p. 7. However, he does not specifically argue the admission of the
Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1625 |34A02-1510-CR-1625 Page 5 of 8 evidence was fundamental error. Because Hannibal does not clearly contend
the admission of evidence constituted fundamental error and does not make an
argument supported by cogent reasoning or citations to any authority, we
conclude he has waived the fundamental error argument, if indeed he ever
intended to make that argument. Pittman v. State, 45 N.E.3d 805, 820-21 (Ind.
Ct. App. 2015); Ind. Appellate Rule 46(A)(8).
[11] Waiver notwithstanding, we conclude the traffic stop does not run afoul of the
Fourth Amendment to the United States Constitution. We review a trial
court’s ruling regarding the admissibility of evidence for an abuse of discretion.
Darringer v. State, 46 N.E.3d 464, 469 (Ind. Ct. App. 2015). An abuse of
discretion occurs where the decision is clearly against the logic and effect of the
facts and circumstances. Rutledge v. State, 28 N.E.3d 281, 287 (Ind. Ct. App.
2015).
[12] The Fourth Amendment generally prohibits a warrantless search or seizure
absent a valid exception to the warrant requirement. Peak v. State, 26 N.E.3d
1010, 1014 (Ind. Ct. App. 2015). A traffic stop is a seizure. Id. However, an
officer may “stop and briefly detain a person for investigative purposes if the
officer has a reasonable suspicion supported by articulable facts that criminal
activity may be afoot.” Robinson v. State, 5 N.E.3d 362, 367 (Ind. 2014)
(quotations omitted) (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct.
1581, 1585 (2014)). “The existence of reasonable suspicion is determined by
looking at the totality of the circumstances to see whether the detaining officer
Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1625 |34A02-1510-CR-1625 Page 6 of 8 has a particularized and objective basis for suspecting wrongdoing.” Peak, 26
N.E.3d at 1015.
Terry stops are limited in scope and purpose. Their purpose is not to discover evidence of a crime, but to allow the officer to pursue his investigation without fear of violence . . . . Since reasonable suspicion is all that is necessary to support a Terry stop and it is a less demanding standard than probable cause . . . [t]he Fourth Amendment requires [only] some minimal level of objective justification for making the stop.
Kellems v. State, 842 N.E.2d 352, 355 (Ind. 2006) (alterations in original)
(citations omitted) (quotations omitted), re’hg granted on other grounds. “Police
officers may stop a vehicle when they observe minor traffic violations.” Santana
v. State, 10 N.E.3d 76, 78 (Ind. Ct. App. 2014).
[13] Officer McClain stopped Hannibal approximately a week before the stop at
issue in this case and learned Hannibal’s driver’s license was suspended.
Officer McClain was familiar with Hannibal’s vehicle, Hannibal’s appearance,
and the status of Hannibal’s driver’s license. He initiated the traffic stop in this
case based on that information, and we conclude that information was far more
than the “minimal objective justification” required by the Fourth Amendment.
Id. Even if, as Hannibal contends, he held a valid learner’s permit,1 the traffic
stop was a reasonable course of action for Officer McClain to take in order to
1 Hannibal concedes he was not accompanied by a related, licensed driver with valid driving privileges who was at least twenty-five years old. See Ind. Code § 9-24-7-4.
Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1625 |34A02-1510-CR-1625 Page 7 of 8 pursue his investigation of what he reasonably believed may have been criminal
activity. Waiver notwithstanding, the trial court did not abuse its discretion by
admitting the officers’ testimonies regarding the events that transpired during
the traffic stop.
Conclusion [14] Officer McClain had reasonable suspicion to support the traffic stop. The trial
court did not abuse its discretion by admitting the evidence related to that stop.
We affirm.
[15] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1625 |34A02-1510-CR-1625 Page 8 of 8