Zachary Asher v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 13, 2017
• Docket: 49A02-1606-CR-1311
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jan 13 2017, 9:48 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Frederick Vaiana Curtis T. Hill, Jr. Voyles Zahn & Paul Attorney General of Indiana Indianapolis, Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Zachary Asher, January 13, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1606-CR-1311 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Alicia Gooden, Appellee-Plaintiff. Judge Trial Court Cause No. 49G21-1512-F5-45528

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1311 | January 13, 2017 Page 1 of 14 Case Summary [1] After a bench trial, Zachary Asher (“Asher”) was convicted of Carrying a

Handgun without a License, as a Level 5 felony,1 and two counts of Resisting

Law Enforcement, as Class A misdemeanors.2 He now appeals.

[2] We affirm.

Issues [3] Asher raises three issues for our review, which we restate as:

I. Whether the trial court properly found that Asher had waived his right to a jury trial;

II. Whether the trial court abused its discretion in admitting evidence obtained during an investigatory stop; and

III. Whether there was sufficient evidence to support the conviction for Carrying a Handgun without a License.

Facts and Procedural History [4] On December 18, 2015, at around 1:40 a.m., Indianapolis Metropolitan Police

Department (“IMPD”) Officer Michael Deskins (“Officer Deskins”) responded

to a radio dispatch to the intersection of Tenth and LaSalle Streets in

1 Ind. Code § 35-47-2-1. 2 I.C. § 35-44.1-3-1(a)(1).

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1311 | January 13, 2017 Page 2 of 14 Indianapolis. An individual had called 911, identified himself, and stated that

two black males wearing bandanas over their faces were at the intersection.

The area of the intersection was known to Officer Deskins as a high-crime area.

[5] When Officer Deskins arrived at the intersection, he saw two youthful-looking

individuals standing at the northeast corner of the intersection: a black male,

later identified as Asher, wearing a black hoodie and a bandana around his

neck, and a white male identified as Cody, who was wearing a white hoodie

and a bandana over his face. Upon Officer Deskins’s arrival, Cody removed

the bandana from his face. He and Asher crossed from the north to the south

side of Tenth Street, and then crossed from the east to the west side of LaSalle

Street. Though the traffic signal permitted them to cross Tenth Street legally,

Asher and Cody did not wait for the signal to change to permit them to cross

LaSalle Street legally. Throughout this time, Asher and Cody continually

looked back toward Officer Deskins’s squad car and appeared nervous.

[6] After seeing Asher and Cody cross LaSalle against the traffic signal, Officer

Deskins turned south and parked his car at the intersection. He then got out of

the car, called out to Asher and Cody, and asked them to come over to him.

The two complied.

[7] After Asher and Cody arrived at the intersection once more, Officer Deskins

asked the two what they were doing in the area in the early morning hours.

Asher stated that they were waiting for a ride to the area of Tenth and Highland

Streets to go to Cody’s home, but Cody was unable to give the specific address

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1311 | January 13, 2017 Page 3 of 14 of his purported residence. When Officer Deskins asked to see Cody’s

identification, Cody could not produce an identification card.

[8] While Officer Deskins spoke to Cody, he observed Asher “blade” his body,

placing his right hip away from Officer Deskins, and saw Asher move his hands

toward his waistline. (Tr. at 17.) Based upon his training and experience,

Officer Deskins recognized Asher’s “blade” posture as one frequently used by

boxers and by persons carrying weapons they wish to keep away from another

individual. Officer Deskins then asked for Asher’s identification, and Asher

said he did not have any with him.

[9] Officer Deskins then told Asher that he wanted to perform a pat-down search of

Asher’s person for weapons, and reached out and took hold of Asher’s left arm.

Asher then tensed up and pulled away from Officer Deskins, yelling “You can’t

search me, you can’t search me.” (Tr. at 18.) Officer Deskins grabbed hold of

the back of Asher’s sweater, and Asher continued to struggle even after a

second officer, Officer James Thalheimer (“Officer Thalheimer”), arrived at the

scene to assist Officer Deskins.

[10] Asher continued to struggle with Officers Deskins and Thalheimer. The course

of the struggle took the three north across the intersection of Tenth and LaSalle

Streets. Officers Deskins and Thalheimer were eventually able to handcuff

Asher, who continued to fight; Officer Deskins eventually retrieved leg shackles

to subdue Asher. Upon returning to Asher to place him in leg shackles, Officer

Deskins saw an empty pistol holster that had partially slipped out of the right

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1311 | January 13, 2017 Page 4 of 14 rear pocket of Asher’s pants. After seeing the holster, Officer Deskins told

Officer Thalheimer that there might be a gun nearby. Looking up, both officers

quickly saw a pistol lying in the middle of the intersection along the path of

their struggle with Asher.

[11] Subsequent to this, Asher was arrested. On December 23, 2015, Asher was

charged with Carrying a Handgun without a License and two counts of

Resisting Law Enforcement.

[12] On February 16, 2016, Asher filed a motion to suppress evidence obtained as a

result of Officer Deskins’s stop. On March 28, 2016, a hearing was conducted

on the motion. At the conclusion of the hearing, the trial court denied Asher’s

motion to suppress evidence.

[13] On April 21, 2016, a bench trial was conducted. Shortly before the beginning of

the bench trial, Asher signed a written waiver of jury trial. The State and the

trial court both agreed with Asher’s waiver, and the case proceeded to trial. At

the end of the trial, the court took the matter under advisement. On May 2,

2016, the court found Asher guilty as charged on all three counts and entered

judgment against him.

[14] A sentencing hearing was conducted on May 19, 2016. At the end of the

hearing, the court sentenced Asher to three years imprisonment for Carrying a

Handgun without a License, and one year of imprisonment on each count of

Resisting Law Enforcement. The sentences were run concurrently with one

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1311 | January 13, 2017 Page 5 of 14 another, with one year to be served in community corrections and two years

suspended to probation.

[15] This appeal ensued.

Discussion and Decision Jury Trial Waiver [16] Asher’s first contention on appeal is that he did not waive his right to a jury

trial, and that his conviction must therefore be reversed.

[17] “The jury trial right is a bedrock of our criminal justice system, guaranteed by

both Article I, Section 13 of the Indiana Constitution and the Sixth

Amendment to the United States Constitution.” Horton v. State, 51 N.E.3d

1154, 1158 (Ind. 2016). Under Indiana constitutional jurisprudence, “in a

felony prosecution, waiver is valid only if communicated personally by the

defendant.” Id. Personal waiver of the right to a jury trial may be either in

writing or in open court. Id.

[18] Indiana has rejected the purported waiver of a right to a jury trial where such

waiver is communicated solely by a defendant’s counsel. Id. at 1158-59 (citing,

inter alia, Kellems v. State, 849 N.E.2d 1110 (Ind. 2006); Good v. State, 267 Ind.

29, 366 N.E.2d 1169 (1977)). In Horton, the trial court inquired of Horton’s

defense counsel whether jury trial on one of several counts against Horton, and

Horton’s counsel stated an intent to proceed forward with a bench trial. Id. at

1156. The Indiana Supreme Court held that without Horton’s personal waiver Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1311 | January 13, 2017 Page 6 of 14 of the jury trial right, “failure to confirm Horton’s personal waiver before

proceeding to bench trial was fundamental error.” Id. at 1160. This was so

even where the circumstances appeared to “imply waiver was the defendant’s

choice.” Id. at 1159. Similarly, in Kellems, the Indiana Supreme Court held

that even where Kellems had been advised of his right to a jury trial and his

option to waive that right and had subsequently responded that he did not have

any questions regarding his rights, counsel’s communication of waiver was not

enough: absent questioning of the defendant or a signed writing indicating

intent to waive a jury trial, no waiver may be deemed to have occurred.

Kellems, 849 N.E.2d at 1172-73.

[19] Asher contends that his case reflects flaws in the jury trial waiver process

similar to those of Horton and Kellems. Asher draws our attention to two points

of note. First, Asher observes that there was no personal, spoken colloquy

between him and the trial court concerning his right to a jury trial and his intent

to waive that right. Second, Asher notes that his written jury trial waiver bears

a date stamp of May 20, 2016—one day after his sentencing hearing, nearly a

month after his bench trial. Asher argues that the absence of personal

advisement and waiver, taken together with the irregularity of the filing date of

the written waiver, establishes that he did not waive his right to a jury trial,

rendering his conviction constitutionally infirm and requiring reversal.

[20] A review of the record here reveals that while the filing date of the jury trial

waiver is later than the date of the bench trial, the document itself appears to

have been executed by Asher on the date of his bench trial. Further, the written

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1311 | January 13, 2017 Page 7 of 14 waiver appears to have been provided to the trial court in advance of the trial

proceeding itself. Thus, while Asher insists “[t]here is nothing in this record to

indicate Asher even executed the waiver because the trial court offered no

inquiry regarding it” (Appellant’s Br. at 17), the waiver had already been

disclosed to the court. In an exchange with counsel, the trial court stated, “The

Court now has a waiver of trial by jury executed by Mr. Asher and his attorney

and also the State of Indiana.” (Tr. at 4.)

[21] Asher suggests that the written and signed waiver is constitutionally infirm in

the absence of a colloquy during which the court could obtain verbal

confirmation either of Asher’s intent to waive a jury trial or of the accuracy of

the signature on the written waiver form—even as he acknowledges that no

such colloquy is required by constitutional or statutory law. (Appellant’s Br. at

15-16.) And other than the suggestion that some kind of colloquy should be

required, Asher establishes no basis from which we may conclude that the

signature on the waiver form is not his, other than the occasional use of the

phrase “purportedly signed.” (Appellant’s Br. at 17.)

[22] Asher is no doubt correct that the procedure here could have been more regular

with respect to the date on which his waiver was file stamped. That does not,

however, serve to render the written and signed waiver infirm—even when

taken together with the absence of a confirmatory colloquy with the trial court.

We accordingly find no error in the trial court’s finding that Asher had waived

his right to a jury trial in this case.

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1311 | January 13, 2017 Page 8 of 14 Investigatory Stop [23] Asher’s next contention on appeal is that the trial court erred when it did not

grant his motion to suppress evidence. Though Asher frames his issue as an

appeal from a denial of a motion to suppress evidence, because he appeals after

a trial, “the question of whether the trial court erred in denying a motion to

suppress is no longer viable.” Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013)

(citation and quotations omitted). Asher’s issue is thus more appropriately

framed as whether the trial court abused its discretion when it admitted

evidence at trial. Reinhart v. State, 930 N.E.2d 42, 45 (Ind. Ct. App. 2010).

The general admission of evidence at trial is a matter we leave to the discretion of the trial court. We review these determinations for abuse of that discretion and reverse only when admission is clearly against the logic and effect of the facts and circumstances and the error affects a party’s substantial rights.

Clark, 994 N.E.2d at 259–60 (citations omitted).

[24] Asher identifies as an abuse of discretion the trial court’s decision, over his

objection, to admit into evidence a gun and a holster that were obtained as a

result of Officer Deskins’s investigative stop of Asher and his companion,

Cody. Investigative stops implicate federal and state protections against

unreasonable searches and seizures. Id. at 260. Generally, searches and

seizures are prohibited without probable cause. Id. However, “[e]ncounters

between law enforcement officers and public citizens take a variety of forms,

some of which do not implicate the protections of the Fourth Amendment and

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1311 | January 13, 2017 Page 9 of 14 some of which do.” Id. at 261. Nonconsensual encounters may take on the

form of brief investigative stops that require reasonable suspicion to pass

constitutional muster. Id.

[25] Reasonable suspicion to conduct a brief investigatory stop requires that the

existence of “specific and articulable facts known to the officer at the time of the

stop that led the officer to believe that ‘criminal activity may be afoot.’” Finger

v. State, 799 N.E.2d 528, 533-34 (Ind. 2003) (quoting Terry v. Ohio, 392 U.S. 1,

30)). A hunch or unparticularized suspicion is not enough to satisfy the

requirement of reasonable suspicion. Id. Rather, a police officer must be able

to point to specific facts that give rise to a reasonable suspicion of criminal

activity. Id. In assessing the existence of reasonable suspicion, we consider the

totality of the circumstances and, though we review for an abuse of discretion,

the determination of reasonable suspicion is one we review de novo. Scott v.

State, 855 N.E.2d 1068, 1073 (Ind. Ct. App. 2003).

[26] Whether reasonable suspicion existed in a particular case is a fact-sensitive

question. Bridgewater v. State, 793 N.E.2d 1097, 1100 (Ind. Ct. App. 2003),

trans. denied. Presence in a high-crime area, even accompanied by flight from

officers, is a factor to be looked at under the totality of the circumstances but is

not sufficient in itself to give rise to reasonable suspicion for an investigative

stop. Id. And even where there is reasonable suspicion to conduct an

investigative stop, “‘[a]n officer’s authority to conduct a pat-down search is

dependent upon the nature and extent of his particularized concern for his

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1311 | January 13, 2017 Page 10 of 14 safety and that of others.’” Johnson v. State, 38 N.E.3d 658, 662 (Ind. Ct. App.

2015) (quoting Wilson v. State, 745 N.E.2d 789, 792 (Ind. 2001)), trans. denied.

[27] Here, Officer Deskins responded to a non-anonymous tip concerning two men

wearing bandanas and standing at a street corner in a high-crime area at around

1:40 a.m., when the local curfew was at 11:00 p.m. Upon arriving at the

intersection of Tenth and LaSalle Streets, Officer Deskins stopped to observe

Asher and Cody. Cody, whose face was covered by a bandana when Officer

Deskins arrived, lowered the bandana and immediately appeared to Officer

Deskins to be very young, giving Officer Deskins reason to believe that Cody

was out in violation of the legal curfew. Asher and Cody began to walk away

from Officer Deskins, crossing against the light as they moved west across

LaSalle Street, giving Officer Deskins reason to believe that the two had

committed jaywalking, an infraction.

[28] Once Officer Deskins pulled through the intersection and stopped his vehicle,

he called Asher and Cody over. Asher said that the two were waiting for a ride

to Cody’s home, but Cody could not tell Officer Deskins their destination’s

address. As Officer Deskins asked Cody questions, he saw Asher “blade” his

body, a posture that Officer Deskins from training and experience recognized as

a fighting stance or a stance intended to keep a weapon away from another

person. Asher was, like Cody, unable to provide identification when asked.

When Officer Deskins attempted to perform a pat-down search, Asher

immediately began to pull away and attempted to flee.

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1311 | January 13, 2017 Page 11 of 14 [29] Under the totality of the circumstances, it was reasonable for Officer Deskins to

suspect that criminal activity was afoot. Given Asher’s conduct while Officer

Deskins spoke with Cody, as well as the absence of other officers present to

help ensure safety, it was further reasonable under the circumstances for Officer

Deskins to seek to perform a pat-down search of Asher for weapons. In light of

the totality of the circumstances, we find no error on the trial court’s part in

denying Asher’s objection to the admission of evidence obtained subsequent to

Officer Deskins’s investigative stop and attempt to conduct a pat-down search.

Sufficiency of the Evidence [30] We turn to Asher’s final contention on appeal, that there was insufficient

evidence to sustain his conviction for Carrying a Handgun without a License.

Our standard of review in such cases is well-settled.

This court will not reweigh the evidence or assess the credibility of witnesses. Cox v. State, 774 N.E.2d 1025, 1028 (Ind. Ct. App. 2002). Only the evidence most favorable to the judgment, together with all reasonable inferences that can be drawn therefrom will be considered. Id. If a reasonable trier of fact could have found the defendant guilty based on the probative evidence and reasonable inferences drawn therefrom, then a conviction will be affirmed. Id. at 1028–29.

Sargent v. State, 875 N.E.2d 762, 767 (Ind. Ct. App. 2007).

[31] Here, to convict Asher as charged, the State was required to prove beyond a

reasonable doubt that Asher knowingly carried a handgun in a vehicle or on his

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1311 | January 13, 2017 Page 12 of 14 person, without being licensed as required by law, within 500 feet of a school.

See I.C. § 35-47-2-1; App’x at 28.

[32] Asher challenges only the sufficiency of the evidence as to his possession of the

handgun. His argument is that, in the absence of DNA or fingerprint evidence

connecting him to the pistol, and in light of the struggle with police officers,

there is insufficient evidence to connect him to the firearm that Officers Deskins

and Thalheimer found in the intersection of Tenth and LaSalle Streets.

[33] At trial, Officer Deskins testified that when he arrived at the intersection of

Tenth and LaSalle Streets, he did not see a gun in the intersection. Officer

Deskins characterized the gun as large enough to see in the well-lit intersection,

and testified that had the gun been there at his arrival, he would have seen it

lying in the intersection while still in his squad car. After the struggle with

Asher, both Officers Deskins and Thalheimer were able to easily and

immediately see the gun, which Officer Deskins began to look for after seeing

an empty holster slipping from Asher’s pocket. The officers saw the gun lying

in the intersection along the path of Asher’s struggle with the officers, and

Officer Deskins testified that the gun was not moved from that spot until it was

collected by an evidence technician. Asher raises questions concerning DNA

and fingerprint evidence, an argument that requests that we impermissibly

reweigh evidence.

[34] There was sufficient evidence to connect Asher to the pistol. We accordingly

affirm the conviction for Carrying a Handgun without a License.

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1311 | January 13, 2017 Page 13 of 14 Conclusion [35] The trial court did not err when it found that Asher waived his right to a jury

trial. The trial court did not abuse its discretion when it admitted evidence over

his objection. There was sufficient evidence to sustain Asher’s conviction for

Carrying a Handgun without a License.

[36] Affirmed.

Baker, J., and May, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1311 | January 13, 2017 Page 14 of 14