      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
                                                                           FILED
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                       Jun 23 2017, 8:25 am

      court except for the purpose of establishing                         CLERK
                                                                       Indiana Supreme Court
      the defense of res judicata, collateral                             Court of Appeals
                                                                            and Tax Court
      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Jeffrey A. Baldwin                                       Curtis T. Hill, Jr.
      Tyler D. Helmond                                         Attorney General of Indiana
      Voyles Zahn & Paul                                       Ellen H. Meilaender
      Indianapolis, Indiana                                    Supervising Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Dejuan R. Wells,                                         June 23, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               29A05-1610-CR-2273
              v.                                               Appeal from the Hamilton
      State of Indiana,                                        Superior Court

      Appellee-Plaintiff.                                      The Honorable William J. Hughes,
                                                               Judge
                                                               Trial Court Cause No.
                                                               29D03-1507-F2-6161



      Mathias, Judge.


[1]   Following a jury trial in Hamilton Superior Court, Dejuan R. Wells (“Wells”)

      was convicted of Level 5 felony dealing in marijuana and Level 6 felony



      Court of Appeals of Indiana | Memorandum Decision 29A05-1610-CR-2273 | June 23, 2017     Page 1 of 25
      possession of a narcotic drug. The trial court then found that Wells was a

      habitual offender. The court sentenced Wells to an aggregate term of ten years

      and ordered that the last two years of the sentence be served in community

      corrections. Wells appeals and presents four issues, which we restate as:

              I.       Whether the trial court properly admitted evidence discovered as a
                       result of the traffic stop of Wells’s vehicle;

              II.      Whether Wells’s habitual offender adjudication is supported by
                       sufficient evidence;

              III.     Whether the trial court abused its discretion by refusing a jury
                       instruction tendered by Wells on a lesser included offense; and

              IV.      Whether the trial court abused its discretion in sentencing Wells.


[2]   We affirm.


                                 Facts and Procedural History

[3]   On the night of July 16, 2015, Officer Jarred Koopman (“Officer Koopman”) of

      the Fishers Police Department was working the late shift with his police dog

      Harlej. A few minutes after 11:00 p.m., Officer Koopman observed a GMC

      Yukon sport utility vehicle approximately twenty-five feet in front of his

      vehicle. The temporary license plate on the vehicle had a plastic cover on it, and

      the license plate light appeared not to be working. Thus, Officer Koopman

      could not read the license plate. Officer Koopman pulled his patrol car even

      closer to the Yukon but could still not read the license plate even from ten to

      fifteen feet away. He therefore decided to pull the Yukon over. See Ind. Code §

      9-18-2-26(b)(3), (4) (requiring that a license plate be securely fastened in a place



      Court of Appeals of Indiana | Memorandum Decision 29A05-1610-CR-2273 | June 23, 2017   Page 2 of 25
      and position that is clearly visible and not obstructed or obscured by tires,

      bumpers, accessories, or other opaque objects); Ind. Code § 9-19-6-4(e)

      (requiring that a tail lamp or separate lamp be placed so as to illuminate the

      license plate with white light and make the plate “clearly legible from a distance

      of fifty (50) feet to the rear.”). Fishers Police Officer Adam Brockman (“Officer

      Brockman”), who was nearby, also stopped to assist Officer Koopman during

      the traffic stop.


[4]   Wells was driving the Yukon, and Bria Davis (“Davis”) was in the front

      passenger seat. When Wells saw that he was being pulled over, he asked Davis

      to put a large amount of cash in her purse and told her to tell the police that it

      was her money. He also told Davis that “the stuff was in the back, the drugs.”

      Tr. Vol. 2, p. 212. Officer Koopman approached the Yukon and spoke with

      Wells, who was very nervous and made no direct eye contact with the officer.

      While Officer Koopman spoke with Wells, Officer Brockman went to the

      passenger side window and spoke with Davis. As he did so, he noted a strong

      smell of raw marijuana coming from the vehicle. After obtaining identification

      from Wells and Davis, the officers went to Officer Koopman’s patrol car.

      There, Officer Brockman informed Officer Koopman that he had smelled

      marijuana in the Yukon.

[5]   The police then ordered Wells and Davis out of the car, and Officer Koopman

      took his dog Harlej to the Yukon to sniff the vehicle for illicit drugs. The dog

      “alerted” at the front driver’s side door, indicating that she smelled an illicit

      substance. The officers then searched the Yukon, where they discovered a large


      Court of Appeals of Indiana | Memorandum Decision 29A05-1610-CR-2273 | June 23, 2017   Page 3 of 25
      black duffle bag in between the back seats. Inside the duffle bag were twenty

      bags containing what was later determined to be marijuana, zip-top plastic

      bags, and digital scales with a green residue on the top. When searching Wells’s

      person, the police found a pill bottle and $1,941 in cash. Inside the pill bottle

      were various prescription drugs in whole and half pills; several of the pills later

      tested positive for containing oxycodone. Inside Davis’s purse the police found

      four mobile phones and $11,470 in cash. The police later searched a hotel room

      which led to the discovery of more contraband.


[6]   The State charged Wells in eight counts: Count I, Level 3 felony dealing in a

      narcotic drug; Count II, Level 5 felony dealing in marijuana; Count III, Level 5

      felony possession of a narcotic drug; Count IV, Class B misdemeanor

      possession of marijuana; Count V, Level 2 felony dealing in a narcotic drug;

      Count VI, Level 4 felony possession of a narcotic drug; Count VII, Level 6

      felony possession of marijuana; and Count VIII, Level 4 felony unlawful

      possession of a firearm by a serious violent felon. The State also alleged that

      Wells was a habitual offender.


[7]   Wells filed several pre-trial motions to suppress. The trial court granted these

      motions, and the evidence seized from the hotel room and a storage unit was

      suppressed. On August 1, 2016, Wells filed a fourth motion to suppress, this

      time arguing that the traffic stop was constitutionally improper and that the

      evidence seized as a result of the traffic stop, i.e., the marijuana, pills, and cash,

      should be suppressed. The trial court held a hearing on this motion on August

      25, 2016, and denied the motion that same day.


      Court of Appeals of Indiana | Memorandum Decision 29A05-1610-CR-2273 | June 23, 2017   Page 4 of 25
[8]   Prior to trial, the State dismissed Count VIII. A two-day jury trial began on

      September 6, 2016. Wells objected to the admission of the evidence found in the

      car, and the trial court overruled the objections. At the conclusion of the State’s

      case-in-chief, the trial court granted Wells’s request for a directed verdict as to

      Count I. At the conclusion of the trial, the jury found Wells guilty of Counts II

      (Level 5 felony dealing in marijuana), III (Level 6 felony possession of a

      narcotic drug as a lesser included offense of the charged offense of Level 5

      felony possession of a narcotic drug), and IV (Class B misdemeanor possession

      of marijuana). The State then dismissed Counts V, VI, and VII. The trial court

      entered judgments of conviction on Counts II and III, but not on Count IV due

      to double jeopardy concerns. Wells waived his right to a jury trial on the

      habitual offender enhancement, and the trial court heard evidence on Wells’s

      status as a habitual offender. On September 8, 2016, the court found Wells to be

      a habitual offender.


[9]   A sentencing hearing was held on September 30, 2016. The court found as

      aggravating that Wells had a significant history of criminal and delinquent acts.

      The trial court also noted the evidence showing the full measure of Wells’s

      extensive criminal activity in this case, including the evidence from the hotel

      room and storage facility that the trial court had ordered suppressed, and also

      noted Wells’s attempts to place blame on Davis. The court found as mitigating

      that incarceration would be a hardship on Wells’s family. The trial court

      determined that the aggravating factors outweighed the mitigating factors and

      sentenced Wells to five years on the Level 5 felony conviction, enhanced by an



      Court of Appeals of Indiana | Memorandum Decision 29A05-1610-CR-2273 | June 23, 2017   Page 5 of 25
       additional five years due to the habitual offender finding, and a concurrent term

       of two and one-half years on the Level 6 felony conviction. The court also

       ordered that the last two years of Wells’s sentence be served in community

       corrections. Wells now appeals.


                   I. Admission of Evidence Found During Search of Vehicle

[10]   Wells first claims that the trial court abused its discretion when it denied his

       motion to suppress. He argues that the traffic stop was constitutionally

       impermissible and that the items seized from his vehicle and found on his

       person thereafter should have been suppressed and not admitted into evidence

       at trial.


       A. Standard of Review

[11]   Because Wells appeals following his conviction and sentence, his argument is

       that the trial court abused its discretion in admitting the evidence obtained as a

       result of the challenged search. Jackson v. State, 890 N.E.2d 11, 15 (Ind. Ct.

       App. 2008). Our standard of review of rulings on the admissibility of evidence is

       essentially the same whether the challenge is made by a pre-trial 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. However, we

       must also consider the uncontested evidence favorable to the defendant. Id.

       “[W]hen an appellant’s challenge to such a[n] [evidentiary] ruling is predicated

       on an argument that impugns the constitutionality of the search or seizure of



       Court of Appeals of Indiana | Memorandum Decision 29A05-1610-CR-2273 | June 23, 2017   Page 6 of 25
       the evidence, it raises a question of law, and we consider that question de

       novo.” Guilmette v. State, 14 N.E.3d 38, 40-41 (Ind. 2014).



       B. The Trial Court Did Not Misinterpret the Evidence

[12]   Wells first argues that the trial court “misinterpreted” the evidence when it

       stated, during the hearing on the motion to suppress,

               However, there is evidence that [Officer Koopman] couldn’t see
               the plate from 50 feet and that was the basis of your stop. I don’t
               know that I believe it and I don’t know whether the jury will
               believe it or not, but don’t have anything else to believe it with so your
               motion to suppress is denied on that basis only.


       Tr. Vol. 2, p. 24 (emphasis added). Wells claims that the trial court’s statement

       was inconsistent with the evidence.


[13]   Specifically, Wells argues that there was a conflict in the evidence with regard

       to the visibility of the license plate and that the trial court therefore did have

       “something else” to believe. Wells is referring to the testimony of his witness,

       William McCallister (“McCallister”), a retired police officer and private

       investigator, who testified that, when he checked the Yukon nine months after

       it had been impounded, he found that one of the two license plate lights was

       working. Wells thus argues that there was other evidence that the trial court

       could have believed.

[14]   The State notes that the trial court made this comment during its ruling on the

       motion to suppress, and Wells did not appeal the denial of his motion to



       Court of Appeals of Indiana | Memorandum Decision 29A05-1610-CR-2273 | June 23, 2017   Page 7 of 25
       suppress. Therefore, the State argues, the trial court’s comment during the

       motion to suppress is irrelevant to the issue on appeal, i.e., whether the trial

       court abused its discretion when it admitted the evidence. Although there is

       logic to the State’s argument, we decline to reject Wells’s claims on this ground

       alone. Instead, we reject Wells’s claim on its merits.


[15]   That is, the trial court did not “misinterpret” the evidence before it. Officer

       Koopman testified that he was unable to see the license plate on the night in

       question even when he was closer than fifty feet from Wells’s vehicle.

       McCallister’s testimony did not contradict Officer Koopman’s testimony.

       McCallister checked the license plate lights on the Yukon during the day in an

       impound lot. He was not present on the night Wells was pulled over and could

       not testify whether the license plate was “clearly legible” from at least fifty feet

       to the rear of the vehicle, as is required by statute. I.C. § 9-19-6-4(e).

[16]   The same is true for the photographs of the license plate which were admitted

       during McCallister’s testimony. These photographs show that one of the license

       plate lights was working, but apparently dim; the other light was inoperable.

       The fact that one of the two license plate lights was working, dimly, nine

       months after the night in question does not contradict Officer Koopman’s

       testimony that the license plate was not clearly legible from fifty feet away as

       required by statute.




       Court of Appeals of Indiana | Memorandum Decision 29A05-1610-CR-2273 | June 23, 2017   Page 8 of 25
       C. The Trial Court Did Not Misapply the Burden of Proof

[17]   In a similar vein, Wells argues that the trial court abused its discretion by

       placing the burden of proof on him to establish the unreasonableness of the

       warrantless search of his vehicle instead of placing the burden on the State to

       establish the reasonableness of the search. See Weathers v. State, 61 N.E.3d 279,

       285 (Ind. Ct. App. 2016) (noting that the State bears the burden of proving that

       a warrantless search falls within an exception to the warrant requirement)

       (citing Taylor v. State, 842 N.E.2d 327, 330 (Ind. 2006)).


[18]   In addressing this claim, we first observe that there is a strong presumption that

       the trial court is aware of and properly followed the applicable law. Crider v.

       State, 984 N.E.2d 618, 624 (Ind. 2013) (citing Dumas v. State, 803 N.E.2d 1113,

       1121 (Ind. 2004); Moran v. State, 622 N.E.2d 157, 159 (Ind. 1993)). It has long

       been established that the State bears the burden of establishing the

       reasonableness of a warrantless search. See State v. Smithers, 256 Ind. 512, 515,

       269 N.E.2d 874, 876 (1971) (citing United States v. Jeffers, 342 U.S. 48, 51 (1951);

       McDonald v. United States, 335 U.S. 451, 456 (1948)).


[19]   Against the backdrop of this strong presumption, and the long-standing rule

       that the State bears the burden of proof of showing the reasonableness of a

       warrantless search, Wells refers us again to the above-quoted comments made

       by the trial court judge while ruling from the bench on the motion to suppress,

       in which the court stated with regard to Officer Koopman’s testimony that he

       could not see the license plate from fifty feet away: “I don’t know that I believe



       Court of Appeals of Indiana | Memorandum Decision 29A05-1610-CR-2273 | June 23, 2017   Page 9 of 25
       it and I don’t know whether the jury will believe it or not, but I don’t have

       anything else to believe[.]” Tr. Vol. 2, p. 24.

[20]   Wells argues that the trial court’s comment suggests that it was incumbent upon

       Wells to put forth something else for the trial court to believe, which he

       contends switched the burden from the State to him. In other words, Wells

       claims that, if the trial court did not know if it could believe Officer Koopman’s

       testimony, then the State necessarily failed to carry its burden of proving the

       existence of an exception to the warrant requirement. We are unable to agree

       with Wells’s interpretation of the trial court’s statements.


[21]   The trial court never stated that Wells had failed to prove anything. It simply

       noted that the State had produced evidence (Officer Koopman’s testimony)

       that, if credited, would support the warrantless search of Wells’s vehicle. Nothing

       directly contradicted Officer Koopman’s testimony that he was unable to read

       the license plate on the night in question. Thus, we take the trial court’s

       statement to mean that the State had met its burden of proof, and Wells had

       failed to adequately rebut the State’s proof. In light of the strong presumption

       that the trial court judge knows the applicable law, we cannot say that the trial

       court’s statements show that the trial court misapplied the burden of proof. The

       trial court’s extemporaneous statements were, at most, inartful, and not

       indicative that the trial court had misapplied a basic black-letter rule of law.




       Court of Appeals of Indiana | Memorandum Decision 29A05-1610-CR-2273 | June 23, 2017   Page 10 of 25
       D. The Trial Court Did Not Leave the Question of Admissibility to the Jury

[22]   Wells also argues that the trial court deferred to the jury the question of

       admissibility of the evidence seized as a result of the search of the vehicle. Wells

       focuses on the following statement from the trial court judge: “However, there

       is evidence that you couldn’t see the plate from 50 feet and that was the basis of

       your stop. I don’t know that I believe it and I don’t know whether the jury will

       believe it or not[.]” Tr. Vol. 2, p. 24.


[23]   Wells correctly notes that questions regarding the admissibility of evidence are

       for the judge, not the jury, to decide. See Halliburton v. State, 1 N.E.3d 670, 684

       (Ind. 2013) (“The court and not the jury determines the admissibility of

       evidence, and the foundation for the admission of secondary evidence is a

       matter alone for the court and not for the jury.”). Wells argues that the trial

       court’s statement indicates that it was deferring to the jury the question of the

       admissibility of the evidence at issue in the motion to suppress. Again, we

       disagree.


[24]   It is obvious that the trial court did not defer ruling on the motion to suppress or

       the admissibility of the evidence at issue. The trial court explicitly denied the

       motion to suppress and, at trial, overruled Wells’s objections to the admission

       of this evidence. Wells even admits in his brief that “[the license plate question]

       was not presented to the jury.” Appellant’s Br. at 14 (emphasis added).


[25]   We believe the trial court’s statement was simply a recognition that, ultimately,

       it was for the jury to determine the credibility and weight to be given to Officer


       Court of Appeals of Indiana | Memorandum Decision 29A05-1610-CR-2273 | June 23, 2017   Page 11 of 25
       Koopman’s testimony at trial. It is fundamental that the jury, as the trier of fact,

       is the ultimate judge of the evidence. See McHenry v. State, 820 N.E.2d 124, 126

       (Ind. 2005) (noting that it is the jury’s “exclusive province” to weigh evidence).


[26]   In short, we do not consider the trial court’s statement to be grounds for

       reversing the trial court’s ruling on the admissibility of the evidence seized as a

       result of the traffic stop.


           II. Sufficiency Evidence Supported the Habitual Offender Finding

[27]   Wells next argues that the State failed to present evidence sufficient to support

       the trial court’s finding that Wells was a habitual offender. Upon a challenge to

       the sufficiency of the evidence to support a habitual offender finding, we will

       neither reweigh the evidence nor judge the credibility of the witnesses. Woods v.

       State, 939 N.E.2d 676, 677 (Ind. Ct. App. 2010). Instead, we consider only the

       evidence most favorable to the trial court’s determination, together with all of

       the reasonable and logical inferences to be drawn therefrom. Id. We will affirm

       the trial court’s habitual offender determination if there is substantial evidence

       of probative value to support it, i.e., if a “reasonable trier of fact could conclude

       that the defendant was convicted of two previous separate and unrelated

       felonies beyond a reasonable doubt.” Flint v. State, 750 N.E.2d 340, 341 (Ind.

       2001).


[28]   The relevant portion of the habitual offender statute provides:

                A person convicted of a Level 5 felony is a habitual offender if
                the state proves beyond a reasonable doubt that:

       Court of Appeals of Indiana | Memorandum Decision 29A05-1610-CR-2273 | June 23, 2017   Page 12 of 25
                (1) the person has been convicted of two (2) prior unrelated
                felonies;
                (2) at least one (1) of the prior unrelated felonies is not a Level 6
                felony or a Class D felony; and
                (3) if the person is alleged to have committed a prior unrelated:
                     (A)    Level 5 felony;
                     (B)    Level 6 felony;
                     (C)    Class C felony; or
                     (D)    Class D felony;

                not more than ten (10) years have elapsed between the time the
                person was released from imprisonment, probation, or parole
                (whichever is latest) and the time the person committed the
                current offense.


       Ind. Code § 35-50-2-8(c).1


[29]   Thus, the State was required to prove that Wells had two prior unrelated

       felonies, that at least one of the prior felonies was not a Level 6 felony or a

       Class D felony, and that, if one of the prior convictions was for a Level 5 or 6

       felony or Class C or D felony, that not more than ten years had elapsed since

       Wells was released from incarceration, probation, or parole, and the date of his

       instant offense.2




       1
        We refer to the version of the habitual offender statute that was effective July 1, 2015, as Wells committed
       his crimes on July 16, 2015.
       2
         To be “unrelated,” the commission of the second felony must be subsequent to the sentencing for the first,
       and the sentencing for the second felony must have preceded the commission of the current felony for which
       the enhanced sentence is being sought. Warren v. State, 769 N.E.2d 170, 171 n.2 (Ind. 2002). Failure to prove
       the proper sequence requires that the habitual offender determination be vacated. Id. Wells does not argue
       that the State failed to adequately prove the proper sequence of commission, conviction, and sentencing. He


       Court of Appeals of Indiana | Memorandum Decision 29A05-1610-CR-2273 | June 23, 2017             Page 13 of 25
[30]   Here, the State alleged that Wells was convicted on October 11, 2006 of Class C

       felony possession of a firearm with an altered or obliterated serial number and

       then subsequently convicted on January 3, 2008 of Class C felony possession of

       a narcotic drug. Wells argues that the State failed to prove that he was the same

       individual who was convicted in these prior cases.


[31]   The record before us establishes that Wells is an African-American male, with a

       date of birth of “12/28/1986,” a Social Security number ending in **83, and an

       address of 5431 Hammock Glenn Drive in Indianapolis. At the habitual

       offender stage of the trial, the State asked the trial court, acting as the trier of

       fact, to take judicial notice of the court records for the cases it alleged proved

       that Wells had two prior unrelated convictions, specifically Cause No. 49G20-

       0801-FA-2474 (“Cause FA-2474”) and Cause No. 49G21-0605-FC-96984

       (“Cause FC-96984”).

[32]   The judicially noticed case records for Cause FA-2474 list a defendant named

       Dejuan R. Wells, a black male with a date of birth of “12/28/1986,” a Social

       Security number ending in **83, and an address of 5431 Hammock Glen Drive,

       Indianapolis, Indiana, 46235. The case records for Cause FA-2474 further show

       that, on February 21, 2008, Dejuan R. Wells pleaded guilty to and was

       convicted of Class C felony possession of cocaine and was sentenced to three

       years thereon. The State also introduced into evidence the abstract of judgment




       argues only that the State failed to prove that he is the same Dejuan R. Wells that that was the subject of the
       prior convictions.



       Court of Appeals of Indiana | Memorandum Decision 29A05-1610-CR-2273 | June 23, 2017              Page 14 of 25
       from Cause FA-2474, which also shows that, on February 21, 2008, a Dejuan

       R. Wells was convicted of Class C felony possession of cocaine or narcotic drug

       and sentenced to three years executed. The plea agreement and charging

       information in Cause FA-2474 were also admitted into evidence, and the

       charging information charges a Dejuan Wells with a date of birth of

       “12/28/86.” Ex. Vol., State’s Ex. 24, p. 7. From this, the trial court, acting as

       the trier of fact, could readily conclude that the Dejuan R. Wells convicted of a

       C felony in Cause FA-2474 was the same Dejuan R. Wells convicted in the

       present case.


[33]   Wells’s main argument attacks the sufficiency of the evidence identifying him

       as the same individual who was convicted of Class C felony possession of a

       firearm with an altered or obliterated serial number in Cause FC-96984. Again,

       at the State’s request, the trial court took judicial notice of the case records for

       Cause FC-96984. The judicially noticed court records for this cause list a

       defendant named Dejuan Wells, a black male with a Social Security number

       ending in **83, and an address of 5431 Hammock Glen Drive, Indianapolis.

       But the defendant information listed in this cause lists a date of birth of

       “12/29/86.” Wells argues that the State “did not establish the habitual offender

       beyond a reasonable doubt because the two conflicting dates of birth [12/28/86

       and 12/29/86] were listed.” Appellant’s Br. at 16. According to Wells, “[a]s

       long as all the identifiers (date of birth and social security number, for example)

       do not match, the State should not be said to have met its burden to prove the




       Court of Appeals of Indiana | Memorandum Decision 29A05-1610-CR-2273 | June 23, 2017   Page 15 of 25
       habitual offender enhancement beyond a reasonable doubt.” Id. This single

       inconsistency does not require reversal of the habitual offender adjudication.

[34]   We agree instead with the State that it is much more likely that the listed date of

       birth in the case records of Cause FC-96984 is merely a typographical or

       scrivener’s error. Indeed, in the chronological case summary for Cause FC-96984

       the entry for the initial hearing shows that “Defendant states true name to be

       DEJUAN WELLS, and D.O.B. 12/28/86.”3 Thus, there was evidence that the

       defendant’s date of birth in Cause FC-96984 was in fact December 28, 1986.

       This, in addition to this defendant having the same name, race, gender, social

       security number, and physical address as Wells, is more than sufficient to prove

       beyond a reasonable doubt that the defendant in Cause FC-96984 was Wells.4




       3
        See https://public.courts.in.gov/mycase/#/vw/CaseSummary/eyJ2Ijp7IkNhc2VUb2tlbiI6Ik1UWTVNek
       V5TnpFeE1EVXdPalU0TWpjNE5qWXhZVFk9In19.
       4
         Wells also notes in his appellant’s brief that he objected to the trial court considering the facts contained in
       the case records of which the trial court took judicial notice. He then states, “[t]here may be good reasons this
       Court would sustain the objection to using Odyssey records to establish the habitual offender.” Appellant’s
       Br. at 15-16 (footnote omitted). Wells, however, develops this argument no further, and we therefore consider
       it waived. See Chappell v. State, 966 N.E.2d 124, 133 n.7 (Ind. Ct. App. 2012) (the failure to fully develop an
       argument results in waiver of the issue on appeal); Ind. Appellate Rule 46(A)(8)(a) (requiring all arguments to
       be supported by citation and cogent reasoning). Waiver notwithstanding, the Odyssey case management
       system currently handles more than 70% of the caseload in Indiana’s courts, will soon handle more than 85%
       of state caseload and will eventually be the exclusive case management system for all of Indiana’s courts.
       Counsel’s offhand comment, without any proof of inaccuracy, is ludicrous.
       Also, we would be remiss if we did not note that Indiana Evidence Rule 201(b)(5), as amended effective
       January 1, 2010, “now permits courts to take judicial notice of ‘records of a court of this state[.]’” Horton v.
       State, 51 N.E.3d 1154, 1160 (Ind. 2016). Court records are presumptively sources of facts “that cannot
       reasonably be questioned” “in the absence of evidence tending to rebut that presumption.” Id. at 1161.
                And because Indiana’s implementation of a unified statewide electronic case management
                system (CMS) is well underway, many court records will soon likewise be at the fingertips
                of any court, litigant, or member of the general public.
       Id. 1161-62 (Ind. 2016).



       Court of Appeals of Indiana | Memorandum Decision 29A05-1610-CR-2273 | June 23, 2017                 Page 16 of 25
[35]   Accordingly, we hold that the State presented evidence sufficient to establish

       beyond a reasonable doubt that the Dejuan Wells that was convicted in Cause

       FA-2774 and Cause FC-96984 was the same Dejuan Wells in the present case.

       Wells’s arguments to the contrary are little more than a request that we reweigh

       the evidence, which we will not do.


        III. Trial Court’s Refusal to Give Lesser Included Offense Instruction

[36]   Wells next contends that the trial court abused its discretion when it rejected his

       proposed jury instruction on the offense of dealing in marijuana as a Level 6

       felony, which he argues was a lesser included offense to the charged offense of

       dealing in marijuana as a Level 5 felony. Wells argues that his tendered

       instruction was appropriate because the jury could reasonably conclude that he

       intended to deal less than ten pounds of marijuana, which is required to elevate

       the offense of dealing in marijuana to a Level 5 felony.


[37]   To determine whether instructions on lesser included offenses should be given,

       we use the three-part analysis set forth in Wright v. State, 658 N .E.2d 563, 566




       Wells’s objection suggests that the trial court can take judicial notice of court records, but not the facts
       contained in the court records. This is contrary to the holding of Horton. Indeed, the Horton court itself took
       judicial notice that the online public docket for the predicate felony in that case indicated that the defendant
       had been previously convicted of Class A misdemeanor domestic battery, and held that this judicially-noticed
       fact constituted evidence that was “independently sufficient to establish the prior conviction on which
       Horton’s instant felony conviction [for domestic battery with a prior conviction] rests.” Id. at 1162. This court
       too has taken judicial notice of court records accessible through Indiana’s implementation of the Odyssey
       case-management system. See, e.g., In re D.P., No. 49A02-1610-JC-2367, ___ N.E.3d ___, 2017 WL 1179572,
       at *6 (Ind. Ct. App. Mar. 30, 2017) (holding that although it was preferable for DCS to present actual
       documents, the trial court could take judicial notice of court records to show evidence of father’s conviction
       for domestic battery, and taking judicial notice of Odyssey case records to confirm that father had in fact been
       convicted of domestic battery).



       Court of Appeals of Indiana | Memorandum Decision 29A05-1610-CR-2273 | June 23, 2017               Page 17 of 25
       (Ind. 1995). We first determine whether the lesser included offense is inherently

       included in the crime charged. Id. If not, we then determine whether the lesser

       included offense is factually included in the crime charged. Id. Lastly, if the

       lesser included offense is either inherently or factually included in the charged

       crime, we determine whether there is a serious evidentiary dispute such that the

       jury could determine that the defendant committed the lesser offense but not the

       greater. Id. at 566-67. If the jury could conclude that the lesser offense was

       committed but not the greater, the trial court should give the jury the requested

       instruction on the lesser offense. Id. at 567.


[38]   If the trial court makes a finding on the record regarding the existence or

       absence of a substantial evidentiary dispute, we review the trial court’s decision

       for an abuse of discretion. Brown v. State, 703 N.E.2d 1010, 1019 (Ind. 1998).

       However, if the trial court rejects the tendered instruction on the basis of its

       view of the law, appellate review of the ruling is de novo. Id.


[39]   Wells claims that his tendered instruction was a correct statement of the law.

       The trial court disagreed, and rejected the tendered instruction because the

       court believed the instruction was an inaccurate statement of the law. Thus, our

       review is de novo.

[40]   The instruction tendered by Wells provided as follows:


               The crime of dealing in marijuana is defined by law as follows: A
               person who knowingly or intentionally possessed with intent to
               deliver marijuana commits dealing in marijuana[,] a Class A
               misdemeanor[.]


       Court of Appeals of Indiana | Memorandum Decision 29A05-1610-CR-2273 | June 23, 2017   Page 18 of 25
                The offense is a Level 6 felony i[f] the amount of the drug
                involved is at least 30 grams but less than 10 pounds of
                marijuana[.]
                The offense is a Level 5 felony i[f] the amount involved is at least
                10 pounds of marijuana.
                Before you may convict the defendant the state must prove each
                of the following beyond a reasonable doubt:
                1. The defendant
                2. Knowingly or intentionally
                3. Possess[ed] with intent to deliver
                4. Pure or adulterated marijuana
                If the state fails to prove each of these elements beyond a
                reasonable doubt you must find the defendant not guilty of
                possession with intent to distribute marijuana as charged.


       Appellant’s Unopposed Motion to Correct Clerk’s Record, Exhibit A.5

[41]   Wells argues that the trial court should have given his tendered instruction

       because it was based on the relevant pattern jury instruction and because he

       should have been allowed to argue that he should not have been held

       responsible for the entire weight of the marijuana found in the car, especially

       because his companion Davis was convicted of dealing the very same

       marijuana. The State counters that the instruction was not a correct statement




       5
        Wells’s tendered instruction was not included in the clerk’s record as originally submitted to this court.
       Accordingly, Wells filed an Unopposed Motion to Correct Clerk’s Record, which we granted, thereby
       making the exhibit attached to the motion a part of the Record on Appeal.



       Court of Appeals of Indiana | Memorandum Decision 29A05-1610-CR-2273 | June 23, 2017              Page 19 of 25
       of the law and that there was no serious evidentiary dispute regarding the

       amount of the marijuana.

[42]   We conclude that the instruction tendered by Wells did not correctly state the

       law concerning lesser included offenses. An instruction on a lesser included

       offense “must explain the role of a lesser included offense and define those

       offenses for the jury.” Corley v. State, 663 N.E.2d 175, 178 (Ind. Ct. App. 1996)

       (citing Smith v. State, 422 N.E.2d 1179, 1184 (Ind. 1981)), abrogated in part on

       other grounds by Campbell v. State, 19 N.E.3d 271 (Ind. 2014). A lesser included

       offense instruction must also inform the jury that, if it determines that the

       defendant did not commit the element or act which distinguishes the greater

       offense from the lesser, it can convict the defendant of the lesser included

       offense. Id. (citing McNary v. State, 428 N.E.2d 1248, 1252 (Ind. 1981)).


[43]   Here, Wells’s tendered instruction simply sets forth the elements of the crime of

       dealing in marijuana, which is generally a Class A misdemeanor. It also states

       that the offense is a Level 6 felony if the amount of marijuana involved is at

       least 30 grams but less than 10 pounds and a Level 5 felony if the amount

       involved is at least 10 pounds. Wells claims that this is an accurate statement of

       the law as provided by the dealing in marijuana statute.6

[44]   Importantly, however, the tendered instruction did not explain the role of a

       lesser included offense to the jury nor did it inform the jury that, if it determined


       6
         This is only true, however, if the defendant has a prior conviction for a drug dealing offense, a requirement
       that Wells’s tendered instruction omitted. See Ind. Code § 35-48-4-10(c)(1), (d)(1).



       Court of Appeals of Indiana | Memorandum Decision 29A05-1610-CR-2273 | June 23, 2017              Page 20 of 25
       that Wells committed the element or act which distinguishes the greater offense

       from the lesser, that it could convict Wells of the lesser offense but not the

       greater. The instruction was accordingly incomplete and insufficient and the

       trial court properly rejected it. See id. (holding that trial court properly rejected

       defendant’s lesser included offense instruction which was incomplete in that it

       did not explain to the jury that, if it determined that defendant did not have

       requisite mens rea for murder, it could decide if he had the requisite mens rea to

       commit one of several lesser offenses).7


                                IV. Trial Court’s Sentencing Discretion

[45]   Lastly, Wells claims that the trial court abused its discretion in sentencing him.

       Sentencing decisions are left to the sound discretion of the trial court, and we

       review the trial court’s decision only for an abuse of this discretion. Singh v.

       State, 40 N.E.3d 981, 987 (Ind. Ct. App. 2015), trans. denied (citing Anglemyer v.

       State, 868 N.E.2d 482, 490 (Ind. 2007)). The trial court may abuse its sentencing

       discretion in a number of ways, including (1) wholly failing to enter a

       sentencing statement, (2) entering a sentencing statement that explains reasons

       for imposing the sentence but the record does not support the reasons, (3) the



       7
         When the trial court noted the deficiency in Wells’s tendered instruction, Wells’s counsel admitted that he
       “should probably add at the bottom [of the instruction] on the elements, if the State proved the amount was
       greater, at least 30 grams but less than 5 grams you should find the Defendant guilty of a Level 6 felony and if
       you find that the amount involved is at least ten pounds you should find the Defendant guilty of a Level 5
       felony.” Tr. Vol. 3, p. 69. The trial court asked, “So you’re wanting to add that . . . to your tender?” Id.
       However, Wells never tendered a written copy of his proposed corrected instruction. An oral request for a
       jury instruction is insufficient, and failure to tender the jury instruction in writing waives the claim on appeal.
       Ketcham v. State, 780 N.E.2d 1171, 1177 (Ind. Ct. App. 2003), trans. denied. Thus, to the extent that Wells
       argues that the trial court erred in refusing his orally tendered instruction, this claim is waived. Id.



       Court of Appeals of Indiana | Memorandum Decision 29A05-1610-CR-2273 | June 23, 2017                Page 21 of 25
       sentencing statement omits reasons that are clearly supported by the record and

       advanced for consideration, or (4) the reasons given in the sentencing statement

       are improper as a matter of law. Id. (citing Kimbrough v. State, 979 N.E.2d 625,

       628 (Ind. 2012)).

[46]   Wells argues that one of the reasons listed in the trial courts sentencing order

       was improper as a matter of law. Specifically, he claims that the trial court’s

       sentencing statement referred to and was based partially on the evidence that

       was found in the hotel room, which was ultimately suppressed, and the charges

       that were based on this evidence but later dismissed when the evidence was

       suppressed. See Tr. Vol. 3, p. 139 (“I am going to take into account what he is

       convicted of and what all the stuff that didn’t come in indicates he was really

       doing at the time he was convicted of these lesser offenses. I consider it to be an

       aggravating factor to have those kinds of weapons and gun, or guns and dollars

       and drugs in another location tied to him.”).


[47]   Wells, however, acknowledges that our supreme court has held that the fact

       that evidence was suppressed and excluded does not preclude the trial court

       from considering the suppressed and excluded evidence during sentencing.

       Walker v. State, 503 N.E.2d 883, 888 (Ind. 1987); see also United States v. Sanders,

       743 F.3d 471, 472 (7th Cir. 2014) (noting that the Seventh Circuit Court of

       Appeals has held that the exclusionary rule does not apply at criminal

       sentencing and that “[e]very other court of appeals has come to the same

       conclusion) (citing United States v. Brimah, 214 F.3d 854, 858 (7th Cir. 2000)).




       Court of Appeals of Indiana | Memorandum Decision 29A05-1610-CR-2273 | June 23, 2017   Page 22 of 25
[48]   Wells argues that Walker is distinguishable from the present case. He also

       argues that Walker should be reconsidered in light of “a sea change” in

       constitutional thinking about sentencing brought about by Apprendi v. New

       Jersey, 530 U.S. 466 (2000).” Appellants Br. at 21. We are unpersuaded by

       either argument.

[49]   With regard to his argument that Walker is distinguishable, Wells contends that

       in Walker, the suppressed evidence, radios, were relevant to the count for which

       Walker was convicted, burglary. See Walker, 503 N.E.2d at 888. But the same is

       true here. Wells was convicted of dealing in marijuana and possession of a

       narcotic drug. The suppressed evidence from the hotel room included firearms

       and a large amount of cash. We cannot say that this evidence is irrelevant to the

       charges for which Wells was convicted.

[50]   With regard to his argument that Walker should be reconsidered, we simply

       note that we have no power to reconsider the decisions of our supreme court.

       We have explained before that


               [w]e are bound by the decisions of our supreme court. Supreme
               court precedent is binding upon us until it is changed either by
               that court or by legislative enactment. While Indiana Appellate
               Rule 65(A) authorizes this Court to criticize existing law, it is not
               this court’s role to “reconsider” supreme court decisions.




       Court of Appeals of Indiana | Memorandum Decision 29A05-1610-CR-2273 | June 23, 2017   Page 23 of 25
       Dragon v. State, 774 N.E.2d 103, 107 (Ind. Ct. App. 2002) (citations omitted).8

       Accordingly, we discern no abuse of the trial court’s sentencing discretion.9


                                                     Conclusion

[51]   The trial court did not abuse its discretion when it admitted evidence discovered

       during the warrantless search of Wells’s vehicle because there was evidence that

       Wells’s license plate was not clearly legible from fifty feet to the rear of his

       vehicle as required by statute. Thus, Officer Koopman was justified in pulling

       over Wells’s vehicle. The evidence before the trial court, including the judicially

       noticed court records, were sufficient to support Wells’s habitual offender

       adjudication. The trial court did not abuse its discretion when it rejected the

       instruction Wells tendered regarding a lesser included offense because the




       8
         Moreover, although Walker was decided before Apprendi and its progeny, the Seventh Circuit Court of
       Appeals held in its 2014 Sanders opinion, well after Apprendi, that the exclusionary rule does not apply at
       criminal sentencing, an opinion shared by all the other federal circuit courts of appeal. See Sanders, 743 F.3d
       at 472. Moreover, under Indiana’s current advisory sentencing scheme, Apprendi, and its progeny Blakely v.
       Washington, 542 U.S. 296 (2004), are inapplicable. When the trial court sentences a defendant under the
       advisory sentencing scheme, the aggravating factors are not used to enhance the sentence beyond the
       “statutory maximum.” See Anglemyer, 868 N.E.2d at 489. We accordingly fail to see how Apprendi or Blakely
       call for reconsideration of Walker.
       9
         In addition to the suppressed evidence, the trial court also found as aggravating Wells’s “horrendous
       criminal history.” Tr. Vol. 3, pp. 150-51. Indeed, the pre-sentence investigation report shows that Wells had
       juvenile adjudications for what would be Class D felony possession of marijuana and Class D felony resisting
       law enforcement if committed by an adult. He also has adult criminal convictions for Class B felony dealing
       in cocaine or narcotic drug, Class C felony possession of a handgun with an altered serial number, Class C
       felony possession of cocaine or narcotic drug, Class D felony possession of marijuana, Class A misdemeanor
       possession of marijuana, and Class A misdemeanor operating a motor vehicle while intoxicated endangering
       a person. He also has had his probation revoked twice. Accordingly, even if we did conclude that the trial
       court’s consideration of the suppressed evidence was improper, Wells would not prevail. See Gleason v. State,
       965 N.E.2d 702, 712 (Ind. Ct. App. 2012) (holding that single aggravating factor of significant criminal
       history was sufficient to justify trial court’s sentencing decision).



       Court of Appeals of Indiana | Memorandum Decision 29A05-1610-CR-2273 | June 23, 2017               Page 24 of 25
       instruction was incomplete. Lastly, the trial court did not abuse its discretion by

       considering evidence that was previously suppressed when sentencing Wells.

[52]   Affirmed.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 29A05-1610-CR-2273 | June 23, 2017   Page 25 of 25
