MEMORANDUM DECISION Jun 15 2015, 5:36 am Pursuant to Ind. Appellate Rule 65(D), this 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 Donald E.C. Leicht Gregory F. Zoeller Kokomo, Indiana Attorney General of Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Tianyve D. Stitts, June 15, 2015
Appellant-Defendant, Court of Appeals Case No. 34A02- 1410-CR-747 v. Appeal from the Howard Superior Court State of Indiana, The Honorable William C. Menges, Jr., Judge Appellee-Plaintiff. Cause No. 34D01-1402-FA-93
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 34A02-1410-CR-747 | June 15, 2015 Page 1 of 14 [1] Tianyve D. Stitts appeals his convictions for three counts of possession of a
controlled substance as class D felonies, escape as a class C felony, and
possession of marijuana as a class A misdemeanor. Stitts raises two issues,
which we revise and restate as:
I. Whether the trial court abused its discretion by admitting certain evidence; and
II. Whether the evidence is sufficient to support Stitts’s conviction of escape as a class C felony.
We affirm.
Facts and Procedural History
[2] In January of 2014, Police Officer Adam Martin arrested Lavonski Elliot. A
few days before February 15, 2014, Officer Martin informed Kokomo Police
Officer Aaron Tarrh that an arrest warrant had been issued for Elliot. Officer
Martin further informed Officer Tarrh that Elliot would be driving a rental
vehicle with a Montana license plate and informed Officer Tarrh to “be on . . .
the look out” for Elliot driving that vehicle. Transcript at 133.
[3] At approximately 3:32 a.m. on February 15, 2014, Officer Tarrh observed a
vehicle with Montana plates pass him. Officer Tarrh could not see the driver of
the vehicle. Officer Tarrh followed the vehicle because it was “the only
Montana-plated car that [he’d] ever seen in Kokomo.” Id. at 134. Officer
Tarrh continued to follow the vehicle until the vehicle pulled into a gas station
and parked at the front of the store. Officer Tarrh also pulled into the gas
station parking lot and parked his marked police vehicle at an angle several feet
Court of Appeals of Indiana | Memorandum Decision 34A02-1410-CR-747 | June 15, 2015 Page 2 of 14 behind the Montana-plated vehicle. Officer Tarrh did not activate his
emergency lights or siren, and there was enough distance between the two
vehicles to allow the Montana-plated vehicle to back out and leave. While
Officer Tarrh was pulling in behind the Montana-plated vehicle, its passenger
exited that vehicle and entered the store.
[4] Officer Tarrh then approached the driver’s side of the vehicle on foot and Stitts,
the driver, rolled down the window. Upon approaching, Officer Tarrh, who is
trained in drug interdiction, detected the odor of marijuana. When asked to
produce his driver’s license, Stitts claimed Officer Tarrh was harassing him.
Officer Jeff Packard, a “certified drug recognition expert,” arrived at the gas
station while Officer Tarrh continued to talk with Stitts, who remained in the
vehicle. Id. at 83. Officer Packard approached the passenger side of the vehicle
where he observed a bag of what he believed to be marijuana in plain view on
the center console.
[5] Officer Tarrh asked Officer Packard to come around to the driver’s side and
when Officer Packard approached it, he also recognized the odor of marijuana
emanating from the vehicle. Officer Tarrh asked Stitts several times to exit the
vehicle. Stitts refused, but did exit the vehicle after Officer Tarrh threatened to
arrest him for resisting law enforcement if he did not do so.
[6] Once Stitts exited the vehicle, Officer Tarrh commenced a search of his outer
clothing, during which Stitts “was becoming more nervous” and “more fidgety”
while “looking around . . . [in] a manner that was consistent with attempting to
Court of Appeals of Indiana | Memorandum Decision 34A02-1410-CR-747 | June 15, 2015 Page 3 of 14 locate a direction to flee.” Id. at 37, 85. Due to Stitts’s nervous behavior, the
officers believed he was a flight risk, and Officer Tarrh placed him in
handcuffs.1 Continuing his search of Stitts, Officer Tarrh found and removed
$2,186.00 from Stitts’s coveralls and a cellophane wrapper that contained a
variety of prescription pills, including four oxycodone, fourteen hydrocodone,
and two carisoprodol. Stitts did not have a prescription for any of these
medications. Upon removing the pills, Officer Tarrh placed them on the top of
the vehicle. At this point, Stitts turned and ran from Officer Tarrh, who
pursued him while Officer Packard remained at the scene.
[7] Officer Tarrh caught up to Stitts after Stitts had slipped and fallen to the
ground. Officer Tarrh then “was able to get on top of [Stitts] and keep him
from getting back up again.” Id. at 121. While Officer Tarrh was attempting to
subdue him, Stitts “kept grabbing the inside of [Officer Tarrh’s] leg” and
“continued to thrash about and tried to roll underneath [Officer Tarrh] and tried
to t[h]rust [Officer Tarrh] off of him.” Id. Officer Tarrh told him to stop, but
Stitts “continued to roll and thrash underneath [Officer Tarrh].” Id. Stitts
stopped struggling after Officer James Nielson arrived and placed his knees on
Stitts’s legs. Officer Nielson transported Stitts to the jail, where he was
searched.
1 At trial, Officer Tarrh testified that “[Stitts] wasn’t under arrest when I first placed him in handcuffs, not until I found the pills.” Transcript at 135. When asked if he formally placed Stitts under arrest after finding the pills, Officer Tarrh answered, “No.” Id. at 136.
Court of Appeals of Indiana | Memorandum Decision 34A02-1410-CR-747 | June 15, 2015 Page 4 of 14 [8] On February 18, 2014, the State charged Stitts with: Count I, dealing in cocaine
as a class A felony; Count II, possession of cocaine as a class C felony; 2 Count
III, possession of a controlled substance as a class D felony (Hydrocodone);
Count IV, possession of a controlled substance as a class D felony
(Oxycodone); Count V, possession of a controlled substance as a class D felony
(Carisoprodol); Count VI, escape as a class C felony; Count VII, possession of
marijuana as a class A misdemeanor; and Count VIII, resisting law
enforcement as a class A misdemeanor.
[9] Stitts moved to suppress all of the evidence supporting the State’s charges
against him on the basis that it was obtained pursuant to an unlawful stop
without reasonable suspicion in violation of the Fourth Amendment of the
United States Constitution, and Article 1, Section 11 of the Indiana
Constitution. The trial court held a suppression hearing and denied the motion
based on specific findings that: (1) Officer Tarrh did not stop Stitts, but Stitts
stopped himself at the gas station; (2) Officer Tarrh parked behind Stitts, but not
so closely as to make it impossible for Stitts to leave; (3) Officer Tarrh did not
turn on his emergency lights or siren; (4) Officer Tarrh gave no indication that
Stitts was not free to leave; (5) Officer Tarrh approached the vehicle and
detected an odor of marijuana; and, (6) once he had detected the odor of
marijuana, Officer Tarrh had probable cause to lawfully detain Stitts. Stitts
2 Officer Tarrh testified that twenty five plastic bags containing what appeared to be cocaine were handed to him by Officer Ramberger, who had escorted Stitts into the jail’s changeover room.
Court of Appeals of Indiana | Memorandum Decision 34A02-1410-CR-747 | June 15, 2015 Page 5 of 14 requested that the court certify his motion to suppress for interlocutory appeal,
but the court declined to do so.
[10] At Stitts’s jury trial, defense counsel did not object to the admission of the
testimony regarding the discovery of the money and prescription drugs in
Stitts’s possession, the observation of marijuana on the center console, and the
cocaine found in Stitts’s possession at the jail. By individual and continuing
objections, defense counsel did object to additional evidence offered about the
money and prescription drugs found in Stitts’s possession; his flight from the
officers; the State chemist’s testimony identifying the marijuana, the
prescription medication, and the cocaine; and to the drug evidence itself.
Defense counsel objected on the basis that the evidence was acquired after an
illegal seizure in violation of Stitts’s constitutional rights, which should render
the evidence inadmissible. The court overruled defense counsel’s objections.
The jury returned verdicts finding Stitts guilty of all three counts of possession
of a controlled substance as class D felonies (Counts III, IV, and V), escape as a
class C felony (Count VI), possession of marijuana as a class A misdemeanor
(Count VII), and resisting law enforcement as a class A misdemeanor (Count
VIII). The jury was unable to reach a verdict on the cocaine related charges
(Counts I and II), and the trial court declared a mistrial on those two charges.
On October 15, 2014, the court sentenced Stitts to an aggregate executed
sentence of twelve years.
Court of Appeals of Indiana | Memorandum Decision 34A02-1410-CR-747 | June 15, 2015 Page 6 of 14 Discussion
I.
[11] The first issue is whether the trial court erred by admitting evidence obtained
after Officer Tarrh parked behind Stitts’s vehicle. In his brief, Stitts frames this
issue as “[d]id the Trial Court improperly deny motions to suppress and
objections to evidence.” Appellant’s Brief at 1. However, “[w]here a defendant
does not perfect an interlocutory appeal from a trial court’s ruling on a motion
to suppress, but objects to the admission of the evidence at trial, the issue on
appeal is more appropriately framed as whether the trial court abused its
discretion by admitting the evidence at trial.” Danner v. State, 931 N.E.2d 421,
426 (Ind. Ct. App. 2010), trans. denied; see also Clark v. State, 994 N.E.2d 252,
259 (Ind. 2013). However, whether made through a pretrial motion to suppress
or at trial by objection, “[o]ur review of rulings for the admissibility of evidence
is essentially the same.” Rutledge v. State, 28 N.E.3d 281, 287 (Ind. Ct. App.
2015). The admission or exclusion of evidence is within the sound discretion of
the trial court, and review of those decisions is only for abuse of discretion. Id.
In determining whether an abuse of discretion has occurred, a finding of such
abuse will be made only “where the decision is clearly against the logic and
effect of the facts and circumstances.” Smith v. State, 754 N.E.2d 502, 504 (Ind.
2001). We will consider substantial and uncontested evidence favorable to the
defendant. Robinson v. State, 5 N.E.3d 362, 365 (Ind. 2014). However, we will
not reweigh the evidence and we defer to findings of fact made by the trial court
Court of Appeals of Indiana | Memorandum Decision 34A02-1410-CR-747 | June 15, 2015 Page 7 of 14 unless they are clearly erroneous. Id. When a defendant’s appeal raises a
question regarding the constitutionality of a search and seizure, the question
presented is a question of law, which we review de novo. Id.
[12] Stitts argues that the encounter between Officer Tarrh and himself was a stop
under the Fourth Amendment of the United States Constitution made without
reasonable suspicion rendering the stop illegal and all evidence obtained as a
result of the stop inadmissible. The State argues that Stitts has waived that
claim by failing to object to most of the evidence and by failing to argue that the
admission of the evidence was fundamental error. The State also contends that
the encounter between Officer Tarrh and Stitts was initially consensual, which
would not implicate the Fourth Amendment.
[13] To preserve the issue for appeal, an appellant must make a contemporaneous
objection at the time the evidence is introduced at trial, regardless of whether a
pretrial motion to suppress was made by the appellant. Brown v. State, 929
N.E.2d 204, 207 (Ind. 2010), reh’g denied. Additionally, we have found the issue
waived where a defendant objected to only a portion of the challenged
evidence. See Dickey v. State, 999 N.E.2d 919, 921 (Ind. Ct. App. 2013);
Hutcherson v. State, 966 N.E.2d 766, 770 (Ind. Ct. App. 2012), trans. denied.
Here, Stitts did specifically object to evidence about his flight from the officers;
the State chemist’s testimony identifying the marijuana, the prescription
medication, and the cocaine; and the drug evidence itself. As well, Stitts lodged
a continuing objection to the offering of evidence “related to the case,” which
was granted by the trial court. Transcript at 103. However, prior to lodging his
Court of Appeals of Indiana | Memorandum Decision 34A02-1410-CR-747 | June 15, 2015 Page 8 of 14 continuing objection, Stitts did not object to the admission of certain testimony
by Officer Packard regarding the discovery of the money and prescription drugs
in his possession and the marijuana observed on the center console of the
vehicle. Having not objected to this evidence at the time it was offered and
having lodged a continuing objection only after the jury had heard significant
evidence relating to the possession counts, we find that Stitts has waived the
issue relating to the admissibility of the evidence to the extent he failed to object
to Officer Packard’s earlier testimony. See Brown, 929 N.E.2d at 207.
[14] Waiver notwithstanding, Stitts’s argument that he was stopped in violation of
the Fourth Amendment of the United States Constitution is unpersuasive. 3 The
Fourth Amendment grants protection from unreasonable search and seizure by
generally prohibiting searches conducted without a warrant supported by
probable cause. Clark, 994 N.E.2d at 260. Not all encounters between law
enforcement officers and citizens implicate the protections of the Fourth
Amendment. Id. at 261. Consensual encounters in which a citizen voluntarily
interacts with an officer do not compel Fourth Amendment analysis. Id.
Nonconsensual encounters do compel a Fourth Amendment analysis and are
typically divided into two levels of detention: full arrests lasting longer than a
3 At trial, Stitts objected to pieces of evidence based upon his motion to suppress, which was based upon the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution. In his brief, Stitts does not mention Article 1, Section 11 or provide an independent analysis of the Indiana Constitution. Failure to make a cogent argument under the Indiana Constitution constitutes waiver of the issue on appeal. See Abel v. State, 773 N.E.2d 276, 278 n.1 (Ind. 2002) (holding that because the defendant presented no authority or independent analysis supporting a separate standard under the state constitution, any state constitutional claim is waived).
Court of Appeals of Indiana | Memorandum Decision 34A02-1410-CR-747 | June 15, 2015 Page 9 of 14 short time, which require probable cause, and brief investigative stops, which
require a lower standard of reasonable suspicion. Id.
[15] “Determining whether this was a consensual encounter or 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.’” Id. (quoting Finger v. State, 799 N.E.2d 528, 532 (Ind. 2003)). “The
test is objective—not whether the particular citizen actually felt free to leave,
but ‘whether the officer’s words and actions would have conveyed that to a
reasonable person.’” Id. (quoting California v. Hodari D., 499 U.S. 621, 628, 111
S. Ct. 1547, 1551 (1991)). Furthermore, United States v. Mendenhall “establishes
that the test for existence of a ‘show of authority’ is an objective one: not
whether the citizen perceived that he was being ordered to restrict his
movement, but whether the officer’s words and actions would have conveyed
that to a reasonable person.” Hodari D., 499 U.S. at 628, 111 S. Ct. at 1551
(citing 446 U.S. 544, 100 S. Ct. 1870 (1980)). Factors that might lead a
reasonable person to conclude that he or she was not free to leave include the
threatening presence of several officers, the display of a weapon by an officer,
the physical touching of the person by an officer, or the use of language or tone
of voice indicating that compliance with the officer’s requests might be
compelled. Clark, 994 N.E.2d at 261-262. However, the factors that go into
determining whether a person would conclude that she is not free to leave “will
vary, not only with the particular police conduct at issue, but also with the
setting in which the conduct occurs.” Michigan v. Chesternut, 486 U.S. 567, 573,
Court of Appeals of Indiana | Memorandum Decision 34A02-1410-CR-747 | June 15, 2015 Page 10 of 14 108 S. Ct. 1975, 1979 (1988). In Powell v. State, 912 N.E.2d 853, 860-862 (Ind.
Ct. App. 2009), we held that a police officer approaching a parked vehicle does
not constitute an investigatory stop or seizure for the purposes of the Fourth
Amendment. However, we have found it to be a seizure under the Fourth
Amendment when a police officer blocks a vehicle in such a way that it is
impossible for that vehicle to leave. Stickle v. State, 792 N.E.2d 51, 53 (Ind. Ct.
App. 2003), trans. denied.
[16] Officer Packard testified that there was “room for [Stitts’s vehicle] to back out .
. . .” Transcript at 82. The court found that there was enough distance between
Officer Tarrh’s vehicle and Stitts’s vehicle for Stitts to back out of his parking
space and leave the gas station. The record also reveals that Officer Tarrh was
alone, did not display a weapon, and did not physically touch Stitts. See Clark,
994 N.E.2d at 261-262. Additionally, Officer Tarrh did not turn on his
emergency lights or siren when he pulled in behind Stitts. The trial court’s
specific factual findings indicate that Stitts was both free to leave and able to do
so. The trial court’s determination that a reasonable person in Stitts’s position
would have concluded that he was free to leave was not clearly erroneous. We
conclude that the initial encounter between Officer Tarrh and Stitts was
consensual.
[17] At the point that Officer Tarrh detected the odor of marijuana coming from the
vehicle, he had probable cause to detain Stitts and conduct a search. Clark, 994
N.E.2d at 260 (“[T]he smell of burnt marijuana emanating from [a person’s] car
windows, to a trained officer, would provide such an officer with probable
Court of Appeals of Indiana | Memorandum Decision 34A02-1410-CR-747 | June 15, 2015 Page 11 of 14 cause sufficient to justify searching at least the open interior of the car.”); Bell v.
State, 13 N.E.3d 543, 546 (Ind. Ct. App. 2014) (“[T]he smell of raw marijuana
on a person is sufficient to provide probable cause that the person possesses
marijuana.”), trans. denied. One of the exceptions to the Fourth Amendment’s
warrant requirement for searches is a search incident to a lawful arrest. Arizona
v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710, 1716 (2009). Accordingly, when
Officer Tarrh smelled the odor of marijuana coming from Stitts’s vehicle and
when Officer Packard observed marijuana in plain view, the officers not only
had probable cause to arrest Stitts, but also had authority to conduct a search
incident to that arrest without a warrant. See Bell, 13 N.E.3d at 545-546; see also
Powell, 912 N.E2d at 863 (discussing the “plain view” doctrine). Therefore, as
the initial encounter between Stitts and Officer Tarrh was consensual and Stitts
was further detained and searched after the officers had probable cause, we find
that the trial court did not abuse its discretion in admitting the evidence
obtained during the encounter between Stitts and the officers.
II.
[18] The next issue is whether the evidence presented by the State was sufficient to
support Stitts’s conviction of escape as a class C felony.4 Stitts argues that a
4 In his brief, Stitts frames this issue as “[w]as the Defendant improperly convicted of Escape and Resisting?” Appellant’s Brief at 1. However, in his summary of the argument regarding this issue, he states only that “[t]here is no factual basis for Stitts having been convicted of escape.” Appellant’s Brief at 6. In the argument section of his brief, Stitts addresses the resisting conviction only on the basis that the encounter between himself and Officer Tarrh was an unconstitutional stop and the evidence of his resisting should have been suppressed. As we discussed in Part I, the encounter was not an unconstitutional stop and the evidence of Stitts’s flight and subsequent resistance was properly admitted at trial. For these reasons, we address only the sufficiency of the evidence supporting Stitts’s conviction for escape as a class C felony.
Court of Appeals of Indiana | Memorandum Decision 34A02-1410-CR-747 | June 15, 2015 Page 12 of 14 necessary element of the crime was not proven because he was not under arrest
at the time that he fled from the gas station. When reviewing claims of
insufficiency of the evidence, we do not reweigh the evidence or judge the
credibility of witnesses. Gray v. State, 903 N.E.2d 940, 943 (Ind. 2009). Rather,
we look to the evidence and the reasonable inferences therefrom that support
the verdict. Id. We will affirm the conviction if there exists evidence of
probative value and reasonable inferences drawn from that evidence upon
which a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. Id.
[19] The offense of escape as a class C felony is governed by Ind. Code § 35-44.1-3-
4, which at the time of the offense provided that “[a] person . . . who
intentionally flees from lawful detention commits escape, a Class C
felony.”5 At the time of the offense, Ind. Code § 35-31.5-2-186 defined “lawful
detention” to mean “arrest . . . or . . . any other detention for law enforcement
purposes.”6 Thus, to convict Stitts of escape as a class C felony, the State
needed to prove that Stitts intentionally fled from lawful detention.
[20] The Indiana Supreme Court has held that an arrest occurs not only when a
person is formally placed under arrest, but also when a police officer interrupts
the freedom of the accused person and restricts his liberty of movement. Roberts
v. State, 599 N.E.2d 595, 598 (Ind. 1992). In addition, an intent to arrest may
5 Subsequently amended by Pub. L. No. 158-2013, § 511 (eff. July, 1 2014). 6 Subsequently amended by Pub. L. No. 170-2014, § 9 (eff. July 1, 2014).
Court of Appeals of Indiana | Memorandum Decision 34A02-1410-CR-747 | June 15, 2015 Page 13 of 14 be drawn from attendant circumstances and need not be expressly announced if
it would be idle ceremony to do so. Gilman v. State, 180 Ind. App. 483, 488, 389
N.E.2d 327, 331 (1979). Determining whether a person is under detention
requires 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.
Finger, 799 N.E.2d at 532 (citing Hodari D., 499 U.S. at 628, 111 S. Ct. at 1547).
In this case, Stitts had been ordered to exit his vehicle under threat of being
arrested for resisting a law enforcement official, had been placed into handcuffs,
was being searched, and large quantities of currency and a cellophane wrapper
containing prescription medications for which he had no prescription had been
found on his person before he ran from the gas station. For these reasons, we
conclude that a reasonable inference from the evidence and attendant
circumstances is that Stitts was lawfully detained for purposes of Ind. Code §
35-44.1-3-4. Because Stitts was lawfully detained when he ran from the officers,
we conclude that the jury could have found Stitts guilty beyond a reasonable
doubt of escape as a class C felony.
Conclusion
[21] For the foregoing reasons, we affirm Stitts’s convictions.
[22] Affirmed.
Crone, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 34A02-1410-CR-747 | June 15, 2015 Page 14 of 14