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:

ELLEN M. O’CONNOR                                  GREGORY F. ZOELLER
Marion County Public Defender Agency               Attorney General of Indiana
Indianapolis, Indiana

                                                   GEORGE P. SHERMAN
                                                   Deputy Attorney General

                                                                                 FILED
                                                   Indianapolis, Indiana

                                                                            Nov 20 2012, 9:13 am

                               IN THE                                               CLERK
                                                                                  of the supreme court,

                     COURT OF APPEALS OF INDIANA                                  court of appeals and
                                                                                         tax court




IVAN CALDERON,                                     )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 49A04-1202-CR-88
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Amy J. Barbar, Magistrate
                            Cause No. 49G02-1108-FC-59783



                                       November 20, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge
       Ivan Calderon (“Calderon”) was convicted after a bench trial of disarming a law

enforcement officer1 as a Class C felony, pointing a firearm2 as a Class D felony, resisting

law enforcement3 as a Class D felony, possession of marijuana4 as a Class A

misdemeanor, and carrying a handgun without a license5 as a Class A misdemeanor. He

appeals, raising the following restated issue:            whether the trial court committed

fundamental error when it admitted evidence at trial that he contends was discovered in

violation of the Fourth Amendment to the United States Constitution because the officer

lacked reasonable suspicion to stop and frisk him.

       We affirm.

                           FACTS AND PROCEDURAL HISTORY

       On the evening of August 22, 2011, Indianapolis Metropolitan Police Officer Joel

Kellar (“Officer Kellar”) was on routine patrol in Indianapolis, Indiana when he noticed a

large group of people in the common area at the Greystone Apartments located at 5430

Scarlet Drive. Officer Kellar parked his patrol car nearby and proceeded to walk around

the area and observe what was going on. Officer Kellar patrolled the area frequently, and

when he approached the large group of people, he looked to see if he recognized anyone

from prior dealings. The group consisted of seven to eight people, all of whom were


       1
          See Ind. Code § 35-44-3-3.5. We note that this section was repealed by Public Law 126-2012,
section 53, effective July 1, 2012, and it can now be found at Indiana Code section 35-44.1-3-2.
       2
           See Ind. Code § 35-47-4-3.
       3
          See Ind. Code § 35-44-3-3. We note that this section was repealed by Public Law 126-2012,
section 53, effective July 1, 2012, and it can now be found at Indiana Code section 35-44.1-3-1.
       4
           See Ind. Code § 35-48-4-11.
       5
           See Ind. Code §§ 35-47-2-1, 35-47-2-23.
                                                     2
black except for one male, later identified as Calderon.

       As Officer Kellar approached the group, he saw smoke and smelled the odor of

burnt marijuana. Officer Kellar asked the group how everyone was doing, which got

everyone’s attention. Calderon stood out to Officer Kellar because the officer had never

seen Calderon at the apartment complex before. When Officer Kellar made eye contact

with Calderon, Calderon’s whole demeanor changed, and he put his head down and stuck

his hands in his pockets. Because of problems with crime at the apartment complex,

including break-ins, the apartment complex’s management has requested that officers

look for individuals who were trespassing. Officer Kellar asked Calderon if he lived in

the apartment complex. Calderon responded something to the effect of, “I’m going

inside or I’m leaving now.” Tr. at 42. He then turned and walked toward Apartment B

on the bottom floor of a nearby building.         Officer Kellar was aware from prior

investigations that a black male, a white female, and their child lived in the apartment to

which Calderon had been walking, and he had never seen Calderon in that particular

apartment.

       Officer Kellar told Calderon that he did not answer the officer’s question and

asked Calderon to turn around and come back. Calderon walked back toward the officer.

Officer Kellar reached his left hand toward Calderon’s shoulder so that Officer Kellar

could perform a patdown search with his right hand. However, when Officer Kellar

attempted to begin the patdown, Calderon immediately began running away from the

officer. Officer Kellar grabbed Calderon’s shirt and was able to stay with him when

Calderon ran between vehicles in the parking lot. Officer Kellar tried to put Calderon in


                                             3
custody, but Calderon started to fight with the officer. When Officer Kellar attempted to

pin Calderon against a vehicle so that the officer could reach his radio and call for back-

up, he felt pressure on his weapon. Officer Kellar was unable to call for back-up because

he had to step back from Calderon to make sure Calderon could not remove the officer’s

weapon from its holster. Calderon again ran away from Officer Kellar, but the officer

was able to catch Calderon.

       When Officer Kellar caught up to Calderon, Calderon threw the officer into a

brick wall. The two continued to struggle with each other, and when Officer Kellar tried

to take Calderon to the ground, Calderon pointed a handgun at the officer’s head. Officer

Kellar immediately threw Calderon to the side to try to keep the handgun away from the

officer. The struggle continued between the two, during which time, Calderon pointed

the handgun at Officer Kellar three or four times. Calderon again ran away from the

officer, but Officer Kellar caught him. At this point, Calderon raised his weapon again,

and Officer Kellar reached for his own weapon while trying to prevent Calderon from

pointing his gun at the officer. As soon as Officer Kellar removed his weapon from its

holster, Calderon said, “Okay, Okay, I’m done. I’m done,” and he dropped his weapon.

Id. at 60. After other officers arrived and Calderon was handcuffed, the officers found a

handgun on the ground next to Calderon as well as three baggies of marijuana in his pants

pocket.

       The State charged Calderon with disarming a law enforcement officer as a Class C

felony, pointing a firearm as a Class D felony, criminal gang activity as a Class D felony,

resisting law enforcement as a Class D felony, possession of marijuana as a Class A


                                            4
misdemeanor, and carrying a handgun without a license as a Class A misdemeanor. A

bench trial was held, and Calderon did not object to the admission of the handgun and

marijuana seized from him. At the conclusion of the trial, Calderon was found guilty of

disarming a law enforcement officer, pointing a firearm, resisting law enforcement,

possession of marijuana, and carrying a handgun without a license, but was acquitted of

criminal gang activity. The trial court sentenced him to an aggregate sentence of three-

and-one-half years with two years executed and one-and-one-half years on probation.

Calderon now appeals.

                               DISCUSSION AND DECISION

       The admission of evidence is within the sound discretion of the trial court, and we

will reverse only on a showing of abuse of discretion. Boggs v. State, 928 N.E.2d 855,

862 (Ind. Ct. App. 2010) (citing McClendon v. State, 910 N.E.2d 826, 832 (Ind. Ct. App.

2009), trans. denied), trans. denied. An abuse of discretion occurs if the decision is

clearly against the logic and effect of the facts and circumstances before the trial court.

Id. However, Calderon failed to object to the admission of the evidence at trial, so he has

waived any error in the admission of the evidence. Willis v. State, 907 N.E.2d 541, 545

(Ind. Ct. App. 2009). A claim that has been waived by a defendant’s failure to raise a

contemporaneous objection can be reviewed on appeal if the reviewing court determines

that a fundamental error occurred. Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). The

fundamental error exception is “extremely narrow, and applies only when the error

constitutes a blatant violation of basic principles, the harm or potential for harm is

substantial, and the resulting error denies the defendant fundamental due process.” Id.


                                            5
(citing Matthews v. State, 849 N.E.2d 578, 587 (Ind. 2006)). The error claimed must

either “make a fair trial impossible” or constitute “clearly blatant violations of basic and

elementary principles of due process.” Id. (citing Clark v. State, 915 N.E.2d 126, 131

(Ind. 2009)). This exception is available only in “egregious circumstances.” Id. (citing

Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003)).

       Calderon argues that the trial court erred when it allowed the handgun and

marijuana seized from him to be admitted into evidence. He contends that the evidence

was discovered in violation of the Fourth Amendment to the United States Constitution

because Officer Kellar lacked reasonable suspicion to stop and frisk him. Calderon

claims that this is because Officer Kellar did not have any evidence of illegality when he

stopped Calderon, and because the stop was not justified, it was fundamental error to

admit the evidence seized as a result of the stop.

       The Fourth Amendment protects persons from unreasonable search and seizure,

and this protection has been extended to the states through the Fourteenth Amendment.

U.S. Const. amend. IV; Boggs, 928 N.E.2d at 863. Generally, a search warrant is a

prerequisite to a constitutionally proper search and seizure. Id. (citing Halsema v. State,

823 N.E.2d 668, 676 (Ind. 2005)). When a search or seizure is conducted without a

warrant, the State bears the burden of proving that an exception to the warrant

requirement existed at the time of the search or seizure. Id.

       The United States Supreme Court established one such exception in Terry v. Ohio,

392 U.S. 1 (1968), which held that a police officer may briefly detain a person for

investigatory purposes without a warrant or probable cause, if, based on specific and


                                              6
articulable facts together with reasonable inferences from those facts, an ordinarily

prudent person would reasonably suspect that criminal activity was afoot. Howard v.

State, 862 N.E.2d 1208, 1210 (Ind. Ct. App. 2007). Reasonable suspicion is determined

on a case-by-case basis by looking at the totality of the circumstances. Id. In addition to

detainment, Terry permits a police officer to conduct a limited search of the individual’s

outer clothing for weapons if the officer reasonably believes the individual is armed and

dangerous. Id.

       In the present case, the evidence showed that, at the time that Officer Kellar

stopped Calderon, the officer was aware that there had been reports of criminal activity at

the apartment complex, including break-ins of uninhabited apartments and individuals

trespassing on the property. He also observed smoke and smelled the odor of marijuana

coming from the area where the group of people, including Calderon, was standing when

Officer Kellar approached. Officer Kellar had a familiarity with the area, and he did not

recognize Calderon and had never seen him at the apartment complex before. When

Officer Kellar made eye contact with Calderon, Calderon acted evasively, looking down

and sticking his hands in his pockets. Calderon then began to walk away in the direction

of an apartment where Officer Kellar knew the occupants and did not believe that

Calderon lived. Based on the totality of the circumstances, reasonable suspicion existed

for Officer Kellar to stop Calderon. We therefore conclude that Calderon has failed to

demonstrate that the trial court committed fundamental error when it admitted the

evidence seized from Calderon. Affirmed.

NAJAM, J., and MAY, J., concur.


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