MEMORANDUM DECISION                                                FILED
                                                              Dec 21 2016, 7:48 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                       CLERK
                                                               Indiana Supreme Court
precedent or cited before any court except for the                Court of Appeals
                                                                    and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
David L. Joley                                         Gregory F. Zoeller
Fort Wayne, Indiana                                    Attorney General of Indiana
                                                       Angela N. Sanchez
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Giavonda Chandler,                                         December 21, 2016

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           02A04-1606-CR-1460

        v.                                                 Appeal from the Allen Superior
                                                           Court
State of Indiana,                                          The Hon. Wendy Davis, Judge
                                                           The Hon. David M. Zent, Magistrate
Appellee-Plaintiff.
                                                           Trial Court Cause No. 02D04-1511-
                                                           CM-4574




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1460 | December 21, 2016   Page 1 of 10
                                          Case Summary
[1]   Early on a morning in November of 2015, two Fort Wayne Police Officers

      responded to a report of a disturbance with shots fired from either a black

      Cadillac or a pickup truck. When the officers encountered a vehicle matching

      the reported description one block away and driving away from the scene, they

      stopped it. Appellant-Defendant Giavanda Chandler and a passenger were

      ordered from the vehicle at gunpoint, patted down for weapons, and

      handcuffed. When one officer attempted to secure the vehicle, he noticed a

      handgun sticking out of a purse on the driver’s seat. Once it was determined

      that Chandler was not licensed to carry a handgun, officers placed her under

      arrest. A search of Chandler’s person revealed a plastic baggie containing

      marijuana, and a search of her purse uncovered a marijuana cigarette. The

      State charged Chandler with Class A misdemeanor carrying a handgun without

      a license and Class B misdemeanor marijuana possession, and the trial court

      found her guilty as charged. Chandler contends that the trial court abused its

      discretion in admitting evidence (1) regarding the course of the officers’

      investigation and (2) seized as a result of the officers’ stop of her vehicle and

      searches of her person and her purse. Because we conclude that Chandler has

      waived her argument with regard to course-of-the-investigation testimony and

      that evidence was not seized from her in violation of her constitutional rights,

      we affirm.



                            Facts and Procedural History
      Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1460 | December 21, 2016   Page 2 of 10
[2]   At approximately 4:00 a.m. on November 29, 2015, Fort Wayne Police Officers

      Jason Fuhrman and David Bush responded to a report of a disturbance in the

      1600 block of Elmrow Street. Both officers were informed en route that shots

      had been fired by the occupants of either a black Cadillac or a pickup truck.

      Officer Fuhrman, who was only three blocks away when he received the report,

      approached and observed a black Cadillac STS driving away from the area.

      The STS was approximately one block away from the scene of the disturbance.


[3]   As Officer Bush approached, driving toward the STS, the STS signaled a turn

      down a roadway on which Officer Fuhrman was approaching but ended up

      continuing through the intersection. Eventually, both officers fell in behind the

      STS and initiated a stop. Both officers remained shielded behind their vehicles’

      doors, drew their weapons, and ordered the driver of the STS to emerge.

      Chandler emerged from the driver’s side, and the officers ordered her to walk

      back to the patrol cars, where they handcuffed her and patted her down for

      weapons. The officers followed the same procedure for the passenger.


[4]   While Officer Fuhrman was checking the passenger for weapons, Officer Bush

      approached the STS, on which Chandler and the passenger had left the front

      doors open. Officer Bush observed a large handbag on the driver’s seat with a

      handgun clearly visible inside. The officers determined that Chandler did not

      possess a handgun license and arrested her. During a search of Chandler’s

      person, the officers located a small plastic bag of marijuana. The officers also

      conducted an inventory search of the STS before towing it and found a

      marijuana cigarette in Chandler’s handbag.

      Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1460 | December 21, 2016   Page 3 of 10
[5]   Later the same day (November 29, 2015), the State charged Chandler with

      Class A misdemeanor carrying a handgun without a license and Class B

      misdemeanor marijuana possession. On April 15, 2016, the trial court found

      Chandler guilty as charged and sentenced her to 180 days of incarceration for

      each count, to be served concurrently. On May 25, 2016, the trial court denied

      Chandler’s motion to correct error.


                                Discussion and Decision
[6]   Both of Chandler’s arguments are that the trial court abused its discretion in

      admitting certain evidence. The admissibility of evidence is within the sound

      discretion of the trial court. Curley v. State, 777 N.E.2d 58, 60 (Ind. Ct. App.

      2002), trans. denied. We will only reverse a trial court’s decision on the

      admissibility of evidence upon a showing of an abuse of that discretion. Id. An

      abuse of discretion may occur if the trial court’s decision is clearly against the

      logic and effect of the facts and circumstances before the court, or if the court

      has misinterpreted the law. Id. The Court of Appeals may affirm the trial

      court’s ruling if it is sustainable on any legal basis in the record, even though it

      was not the reason enunciated by the trial court. Moore v. State, 839 N.E.2d

      178, 182 (Ind. Ct. App. 2005), trans. denied. We do not reweigh the evidence

      and consider the evidence most favorable to the trial court’s ruling. Hirshey v.

      State, 852 N.E.2d 1008, 1012 (Ind. Ct. App. 2006), trans. denied.




      Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1460 | December 21, 2016   Page 4 of 10
                     I. Course-of-the-Investigation Evidence
[7]   Chandler contends that the trial court abused its discretion in admitting course-

      of-the-investigation evidence tending to show why Officers Fuhrman and Bush

      stopped her Cadillac, treated the stop as high-risk, etc. In this appeal, Chandler

      asserts that the course-of-the-investigation testimony was inadmissible hearsay

      that violated her constitutional right to confront those witnesses against her.

      However, the basis on which Chandler now claims that the testimony was

      erroneously admitted, i.e., it tends to show why the officers acted in the manner

      they did, is the very basis on which she conceded it was admissible below.

      Because Chandler is making an argument inconsistent with the one made

      below, she has waived the issue for appellate consideration. The purpose of the

      contemporaneous objection rule is to promote a fair trial by preventing a party from

      sitting idly by and appearing to assent to an offer of evidence or ruling by the court

      only to cry foul when the outcome goes against him. Purifoy v. State, 821 N.E.2d

      409, 412 (Ind. Ct. App. 2005), trans. denied (citation omitted). By assenting to the

      offer of evidence below on the ground that she now challenges, Chandler has

      waived this argument.




      Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1460 | December 21, 2016   Page 5 of 10
           II. Article 1, Section 11 of the Indiana Constitution
[8]   Chandler also contends that the trial court abused its discretion in admitting all

      of the evidence seized from her as a result of the stop and search. Article 1,

      Section 11, of the Indiana Constitution1 provides that


               [t]he right of the people to be secure in their persons, houses,
               papers, and effects, against unreasonable search or seizure, shall
               not be violated; and no warrant shall issue, but upon probable
               cause, supported by oath or affirmation, and particularly
               describing the place to be searched, and the person or thing to be
               seized.

[9]   The Indiana Supreme Court has noted that


               [w]hile almost identical in wording to the federal Fourth
               Amendment, the Indiana Constitution’s Search and Seizure clause
               is given an independent interpretation and application. Mitchell v.
               State, 745 N.E.2d 775, 786 (Ind. 2001); Baldwin v. Reagan, 715
               N.E.2d 332, 337 (Ind. 1999); Moran v. State, 644 N.E.2d 536, 540
               (Ind. 1994). To determine whether a search or seizure violates the
               Indiana Constitution, courts must evaluate the “reasonableness of
               the police conduct under the totality of the circumstances.”
               Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005) (citing Moran,
               644 N.E.2d at 539). “We believe that the totality of the
               circumstances requires consideration of both the degree of
               intrusion into the subject’s ordinary activities and the basis upon
               which the officer selected the subject of the search or seizure.” Id.
               at 360. In Litchfield, we summarized this evaluation as follows:




      1
        Chandler also argues on appeal that her rights pursuant to the Fourth Amendment to the United States
      Constitution were violated. Chandler’s argument at trial, however, was limited to an alleged violation of the
      Indiana Constitution. Chandler may not now raise this ground on appeal. “A party may not object on one
      ground at trial and raise a different ground on appeal.” White v. State, 772 N.E.2d 408, 411 (Ind. 2002).

      Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1460 | December 21, 2016         Page 6 of 10
                       In sum, although we recognize there may well be
                       other relevant considerations under the
                       circumstances, we have explained reasonableness of a
                       search or seizure as turning on a balance of: 1) the
                       degree of concern, suspicion, or knowledge that a
                       violation has occurred, 2) the degree of intrusion the
                       method of the search or seizure imposes on the
                       citizens’ ordinary activities, and 3) the extent of law
                       enforcement needs.

               Id. at 361.

       Myers v. State, 839 N.E.2d 1146, 1153 (Ind. 2005).

[10]           Investigatory stops invoke the Article 1, Section 11 protections of
               the Indiana Constitution. Rutledge v. State, 426 N.E.2d 638, 642
               (Ind. 1981). An individual’s right of free movement under
               Article 1, Section 11 is not absolute, for society has a right to
               protect itself. Williams v. State, 261 Ind. 547, 551, 307 N.E.2d
               457, 460 (Ind. 1974). In balancing these factors, our courts gauge
               the reasonableness of an investigatory stop by striking “‘a balance
               between the public interest [behind the investigation] and the
               individual’s right to personal security free from arbitrary
               interference from law officers.’” Platt v. State, 589 N.E.2d 222,
               225 (Ind. 1992) (alteration in original) (quoting United States v.
               Brignoni-Ponce, 422 U.S. 873, 878, 95 S. Ct. 2574, 45 L .Ed. 2d
               607 (1975)).
               An investigatory stop of a citizen by a police officer does not
               violate that citizen’s constitutional rights if the officer has a
               reasonably articulable suspicion of criminal activity. Lampkins v.
               State, 682 N.E.2d 1268, 1271 (Ind. 1997) (citing Terry v. Ohio, 392
               U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); United States
               v. Hatch, 827 F. Supp. 536, 541 (N.D. Ind. 1993)). Reasonable
               suspicion is a “somewhat abstract” concept that is not readily
               reduced to a “neat set of legal rules.” United States v. Arvizu, 534
               U.S. 266, 274, 122 S. Ct. 744, 151 L .Ed. 2d 740 (2002). As the
               Court of Appeals has written on the topic,

       Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1460 | December 21, 2016   Page 7 of 10
                   A police officer may briefly detain a person for investigatory
                   purposes without a warrant or probable cause if, based upon
                   specific and articulable facts together with rational inferences
                   from those facts, the official intrusion is reasonably warranted
                   and the officer has a reasonable suspicion that criminal activity
                   “may be afoot.”

               Combs v. State, 851 N.E.2d 1053, 1057 (Ind. Ct. App. 2006).

       State v. Renzulli, 958 N.E.2d 1143, 1146 (Ind. 2011).


[11]   Here, the officers were provided information regarding an alleged shooting by

       police dispatch, the source of which information was not divulged at trial.

       Consequently, we shall assume that the source was an anonymous tip.

               The trustworthiness of hearsay from an informant can be
               established in a number of ways, including where (1) the
               informant has given correct information in the past; (2)
               independent police investigation corroborates the informant’s
               statements; (3) some basis for the informant’s knowledge is
               shown; or (4) the informant predicts conduct or activities by the
               suspect that are not ordinarily easily predicted. Scott v. State, 883
               N.E.2d 147 (Ind. Ct. App. 2008). Where a tip from a
               confidential informant is “completely lacking in indicia of
               reliability and the record offers no evidence that the confidential
               informant was reliable[,] the tip [is] ... inadequate” to establish
               reasonable suspicion. Johnson v. State, 659 N.E.2d 116, 119 (Ind.
               1995).

       Teague v. State, 891 N.E.2d 1121, 1128-29 (Ind. Ct. App. 2008), trans. denied.


[12]   Under the circumstances of this case, we conclude that the police had a

       reasonably high degree of concern that Chandler’s vehicle had been involved in

       a shooting. Officers initially responded to a report of a disturbance and were
       Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1460 | December 21, 2016   Page 8 of 10
       soon thereafter informed that it was believed that shots had been fired from a

       black Cadillac or pickup truck. Although there is no indication that either the

       officers or dispatch knew the identity of the tipster, the evolving nature of the

       information provided to the officers over a short period of time leads to an

       inference that the tipster was a witness at the scene, with dispatch passing along

       information to the officers as it was received.


[13]   Of greater importance, the officers were able to corroborate the information

       relayed to them almost immediately. Officer Fuhrman was three blocks away

       from the reported scene of the shooting when he responded, encountering a

       black Cadillac a block away from the scene traveling away from it. It should

       also be noted that the Cadillac signaled a turn onto a street occupied by Officer

       Bush but did not complete the turn. It may be inferred that Chandler decided

       not to complete her turn upon observing Officer Bush in his fully-marked police

       vehicle. Finally, the events at issue occurred at 4:00 a.m., when traffic is likely

       to be very light, thereby greatly lessening the chances that police would stop a

       vehicle based on mistaken identity. The time of day; the fact that Chandler’s

       vehicle matched the description; the seeming attempt to evade the police; the

       proximity to, and travel away from, the scene of the alleged shooting; and the

       very short time that elapsed before Chandler’s vehicle was seen provided

       officers with sufficient specific information to corroborate the tip and

       reasonably believe that her Cadillac STS was the one that had been involved in

       the alleged shooting.




       Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1460 | December 21, 2016   Page 9 of 10
[14]   Also considering the circumstances, the degree of intrusion into Chandler’s

       activities was not inappropriately severe. Officers, reasonably believing that

       they were stopping a vehicle from which shots had just been fired, employed

       procedures for a high-risk stop. While protecting themselves, the officers

       ensured first that the visible passengers were not armed and dangerous and then

       verified that no other possible shooters remained in the Cadillac. It was Officer

       Bush in the process of securing the vehicle who noticed the handgun in plain

       sight in Chandler’s purse. Only after determining that Chandler was not

       licensed to possess a handgun were further searches conducted incident to the

       arrests of her and her passenger.


[15]   Finally, the needs of law enforcement were great. Officers were responding to a

       report of a disturbance with shots fired, possibly to confront a person who had

       already fired a weapon, was fleeing the scene, and was likely still armed. The

       need to respond quickly to a report of shots fired in order to protect the public

       and authorities is obvious. Under the circumstances, the officers’ actions in

       stopping Chandler’s vehicle—and afterwards—were reasonable. Chandler has

       failed to establish that her rights pursuant to Article 1, Section 11 were violated.


[16]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1460 | December 21, 2016   Page 10 of 10
