MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Oct 09 2018, 6:16 am
regarded as precedent or cited before any                                   CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Gregory L. Fumarolo                                      Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana

                                                         Ian McLean
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Charles D. Burrage,                                      October 9, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A04-1712-CR-2877
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable John F. Surbeck,
Appellee-Plaintiff.                                      Jr., Judge
                                                         Trial Court Cause No.
                                                         02D06-1705-F4-32



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A04-1712-CR-2877 | October 9, 2018          Page 1 of 15
                                             Case Summary
[1]   When police stopped the car in which Charles D. Burrage was riding as a

      backseat passenger, Burrage jumped out and fled. After chasing down Burrage,

      an officer returned to the vehicle and discovered a handgun on the back bench

      seat, in plain view, near where Burrage had been seated before he exited the

      vehicle and ran from police. Burrage filed a pretrial motion to suppress the

      handgun, challenging the legality of the traffic stop, and the trial court denied

      the motion. Following a jury trial, Burrage was convicted of Level 4 felony

      unlawful possession of a firearm by a serious violent felon and Class A

      misdemeanor resisting law enforcement. He now appeals his convictions,

      raising the following restated issues:


              I. Whether the trial court abused its discretion when it admitted
              the firearm into evidence at trial; and


              II. Whether the State presented sufficient evidence to support
              Burrage’s conviction for unlawful possession of a firearm by a
              serious violent felon.


[2]   We affirm.


                                   Facts & Procedural History
[3]   While driving her four-door black Dodge Magnum on the evening of May 10,

      2017, Christina Green picked up her teenage son, I.C.C., from work. Green’s

      co-worker, Ayanna Weaver, was already seated in the front passenger seat, and

      I.C.C. entered the vehicle and sat in the back seat behind Weaver. As a favor


      Court of Appeals of Indiana | Memorandum Decision 02A04-1712-CR-2877 | October 9, 2018   Page 2 of 15
      for a friend, Green then drove to the Hickory Creek Apartments to pick up a

      man and give him a ride to her own house, where he was to meet other

      individuals. When Green arrived at the Hickory Creek Apartments, the man,

      who Green did not know, but who was later identified as Burrage, entered her

      car and sat in the back seat, on the driver’s side.


[4]   At that time, Fort Wayne Police Department (FWPD) officers, along with

      officers from the United States Marshal’s Task Force, were conducting

      surveillance at the Hickory Creek Apartments, having received information that

      Burrage, who had a pending felony arrest warrant for a violation of his parole,

      was likely to be in that area. Specifically, FWPD Detective Derrick Demorest

      had obtained and executed a search warrant for “ping” information on

      Burrage’s phone, and it revealed that the phone was in the Hickory Creek

      complex. Motion to Suppress Transcript at 27. During surveillance at the

      apartment complex, FWPD Detective James Chambers observed a man

      matching Burrage’s general description get into the backseat of the Dodge

      Magnum. Already in the car, in addition to the driver, was a front seat

      passenger and another backseat passenger, who officers later identified as

      Green’s son, I.C.C.


[5]   The Dodge Magnum left the Hickory Creek Apartments parking lot heading

      eastbound on Lower Huntington Road. Some of the surveilling officers

      followed, while others stayed, in case it was not Burrage who left in the

      Magnum. While following the Magnum, FWPD Detective Sergeant Mark

      Brooks observed it “cross the yellow line, the solid yellow line towards the

      Court of Appeals of Indiana | Memorandum Decision 02A04-1712-CR-2877 | October 9, 2018   Page 3 of 15
      center four different times in about a half a mile” on Lower Huntington Road.

      Transcript Vol. 1 at 115. The driver of the Dodge Magnum did not signal a lane

      change or a turn on these occasions. Because Detective Sergeant Brooks was in

      plain clothes and driving an unmarked FWPD vehicle that was not equipped

      with emergency lights, he was not permitted under Indiana law to initiate a

      traffic stop, so he notified other officers that he had observed the vehicle “cross

      the center line four times.” Id. at 116.


[6]   The Dodge Magnum then turned northbound onto Airport Expressway, and

      Detective Michael Long, who was in full uniform and was driving a vehicle

      equipped with lights and a siren, activated his vehicle’s lights and initiated a

      traffic stop. According to Green, Burrage told her from the backseat, “[D]on’t

      stop,” and she replied, “I’m not a criminal, I don’t have anything to hide,” at

      which time she pulled the car over to the right shoulder. Id. at 158, 161. I.C.C.

      noticed that, as the vehicle was pulling over, Burrage was trying to get out of

      the car, and I.C.C. told Burrage to “calm down and not to get out [sic] the car.”

      Id. at 175. As Burrage was exiting the Dodge Magnum, he pulled a gun out of

      his pants and tried to hand it to I.C.C., but I.C.C. turned away and did not take

      it. Burrage then exited the car and ran.


[7]   Meanwhile, as the Dodge Magnum stopped on the shoulder, Detective Long

      saw an individual exit the vehicle from the back driver’s-side door and run in a

      northeast direction down into an embankment. Detective Long ordered the

      individual to stop and chased him a short distance before he deployed a taser

      causing the man to fall. Detective Long arrested the man for resisting law

      Court of Appeals of Indiana | Memorandum Decision 02A04-1712-CR-2877 | October 9, 2018   Page 4 of 15
       enforcement and identified the individual as Burrage. Detective Long’s vehicle

       was equipped with an in-car camera that captured video of the traffic stop and

       chase.


[8]    Detective Long returned to the Dodge Magnum and saw that the remaining

       three occupants were inside but had their hands extended outside of the

       windows. Green was in the driver’s seat, Weaver was in the front passenger

       seat, and I.C.C. was seated behind Weaver. As Detective Long approached,

       I.C.C. told him that the person who ran had left a handgun in the vehicle.

       Detective Long looked inside and saw a black handgun laying on the middle of

       the back bench-style seat. The individuals in the car told him that they did not

       know the man who fled. Detective Long instructed the passengers to exit the

       vehicle, and they were patted down for officer safety. No other weapons were

       found on the occupants or in the vehicle.


[9]    Detective Long retrieved the handgun, which was a loaded .40 caliber

       semiautomatic. There was a bullet in the chamber and additional bullets in the

       magazine. During a search of Burrage, police discovered a baggie in his pocket

       containing a green weedy substance, later identified as marijuana.


[10]   On May 16, 2017, the State charged Burrage with Count I, Level 4 felony

       unlawful possession of a firearm by a serious violent felon, Count II, Class A

       misdemeanor resisting law enforcement, and Count III, Class B misdemeanor

       possession of marijuana. In October 2017, Burrage filed a motion to suppress

       the handgun and marijuana, asserting that the search and seizure violated his


       Court of Appeals of Indiana | Memorandum Decision 02A04-1712-CR-2877 | October 9, 2018   Page 5 of 15
       state and federal constitutional rights. At the hearing, Burrage’s position was

       that the traffic stop was invalid because (1) the radioed traffic infractions were

       that the Dodge Magnum “crossed the center line” a number of times, (2) but

       the road was actually a three-lane road in the relevant area – one each direction

       and a center turn lane – such that the Magnum did not cross any center line or

       violate any statute that required it to stay on the right half of the road, and (3)

       therefore, “there was no violation that justified the stop [of] the vehicle,” and

       the evidence should be suppressed. Motion to Suppress Transcript at 24, 30. The

       State responded that traffic violations justified the stop because officers

       observed the Magnum fail to stay in its lane. Furthermore, even if there was no

       traffic violation, the stop was valid for several other reasons: (1) there was a

       warrant out for Burrage, and officers had a reasonable suspicion that he was in

       the car; (2) Burrage had no standing as a passenger to challenge the stop; and

       (3) Burrage abandoned the weapon when he ran from the car and thereby

       relinquished all interest in the property. Following a hearing, the trial court

       issued an order denying Burrage’s motion to suppress, finding:


               Defendant matched the description of the fugitive sought, the
               traffic stop was valid, the handgun seized was in plain view, was
               abandoned and Defendant had no standing to object to a search.


       Appellant’s Appendix Vol. II at 71.


[11]   Prior to trial, the trial court granted the State’s motion to dismiss Count III. At

       trial, when Detective Sergeant Brooks was cross-examined about having

       radioed to Detective Long that the Magnum drove “left of center” on four

       Court of Appeals of Indiana | Memorandum Decision 02A04-1712-CR-2877 | October 9, 2018   Page 6 of 15
       occasions, Detective Sergeant Brooks explained that the vehicle had driven

       “into the turn lane four times.” Transcript Vol. 1 at 117. Detective Long

       testified that after learning that “the vehicle had committed a lane violation four

       different times” on Lower Huntington Road, he moved ahead of the

       surveillance detective and initiated the traffic stop. Id. at 126. Green testified

       that when she pulled over to the shoulder, “the person that was in my backseat

       jumped out of my car, took off running,” and she heard her son scream,

       “[T]here’s a gun back here.” Id. at 158, 161. She then turned and saw the gun

       for the first time. Green testified that the gun was not hers nor her son’s, who

       was less than eighteen years old. A man named Marcel Wheeler, who had

       been in a relationship with Green on-and-off for six years, testified that he

       owned the Dodge Magnum, but had not driven it in years. Wheeler testified

       that the gun was not his and that he did not own a gun or have a permit to carry

       one. The handgun was admitted into evidence over Burrage’s objection. No

       fingerprints were found on the gun during forensic testing.


[12]   The jury found Burrage guilty of resisting law enforcement and carrying a

       handgun without a license. Burrage waived his right to further proceed with the

       jury trial and admitted to a prior qualifying felony required to prove he was a

       serious violent felon in possession of a firearm. After entering judgments of

       conviction, the trial court sentenced Burrage to six years on Count I and one

       year on Count II, to run consecutively. Burrage now appeals.




       Court of Appeals of Indiana | Memorandum Decision 02A04-1712-CR-2877 | October 9, 2018   Page 7 of 15
                                      Discussion and Decision

                                     I. Admission of Evidence
[13]   Burrage argues the trial court abused its discretion when it admitted the

       handgun into evidence at trial over his objection. In ruling on admissibility

       following the denial of the motion to suppress, the trial court considers the

       foundational evidence presented at trial. Carpenter v. State, 18 N.E.3d 998, 1001

       (Ind. 2014). It also considers the evidence from the suppression hearing that is

       favorable to the defendant only to the extent it is uncontradicted at trial. Id.

       Because the trial court is best able to weigh the evidence and assess witness

       credibility, the appellate court will review the trial court’s rulings on

       admissibility for abuse of discretion and reverse only if a ruling is “clearly

       against the logic and effect of the facts and circumstances and the error affects a

       party’s substantial rights.” Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013). “But

       the ultimate determination of the constitutionality of a search or seizure is a

       question of law that we consider de novo.” Carpenter, 18 N.E.3d at 1001.


[14]   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. State v. Lynch, 961 N.E.2d 534, 536 (Ind. Ct. App. 2012).

       Although “[r]easonable suspicion is a ‘somewhat abstract’ concept that is not

       readily reduced to a ‘neat set of legal rules,’” it is well settled that a police

       officer may briefly detain a person whom the officer believes has committed an

       infraction or ordinance violation. Id. at 536-37 (citing Ind. Code § 34-28-5-3,

       stating that “[w]henever a law enforcement officer believes in good faith that a

       Court of Appeals of Indiana | Memorandum Decision 02A04-1712-CR-2877 | October 9, 2018   Page 8 of 15
       person has committed an infraction or ordinance violation, the law enforcement

       officer may detain that person for a sufficient time”). A decision to stop a

       vehicle is valid so long as the officer’s “on-the-spot evaluation reasonably

       suggests that lawbreaking occurred.” Id. at 537. The determination of

       reasonable suspicion requires de novo review on appeal. Id.


[15]   Burrage contends that the officers did not have reasonable suspicion to initiate a

       traffic stop of the Dodge Magnum and that his convictions for unlawful

       possession of a handgun and resisting law enforcement therefore must be

       reversed. In particular, Burrage relies on the evidence that Detective Brooks

       had radioed to other officers and written in his report that the Dodge Magnum

       “crossed the center line” as it traveled on Lower Huntington Road, but since

       Lower Huntington Road was a three-lane road, “there was no center line to

       cross.” Appellant’s Brief at 14, 21; Defendant’s Ex. B. Thus, Burrage claims,

       “there was no traffic violation” and the stop was pretextual such that

       “everything that happened after the vehicle was stopped . . . is subject to be

       suppressed.” Id. at 21. As he did at the motion to suppress hearing, Burrage

       urges that Ind. Code § 9-21-8-2 is the relevant statute and that there is no

       evidence that he violated it. That statute provides in pertinent part:


               Upon all roadways of sufficient width, a vehicle shall be driven
               upon the right half of the roadway except as follows:


               (3) Upon a roadway divided into three marked lanes for traffic
               under the rules applicable to a roadway divided into three
               marked lanes.


       Court of Appeals of Indiana | Memorandum Decision 02A04-1712-CR-2877 | October 9, 2018   Page 9 of 15
       I.C. § 9-21-8-2(a)(3) (emphasis added). He argues that because Lower

       Huntington Road is a three-lane roadway, “the driver of the Magnum was not

       required by statute to drive upon the right half of the roadway,” and, in any

       event, “there was no evidence presented . . . that the vehicle crossed over into

       the opposite lane of travel.” Appellant’s Brief at 20. Consequently, he argues the

       stop was invalid, and the firearm should not have been admitted at trial. We

       disagree.1


[16]   Burrage’s exclusive focus on the “crossed the center line” evidence is too

       narrow. That is, while there was testimony that Detective Sergeant Brooks had

       radioed that the vehicle was “left of center” or “crossed the center line” – which

       Burrage claims is impossible given that it is a three-lane road – Detective

       Sergeant Brooks gave additional and more explanatory testimony that he

       observed the vehicle “cross the yellow line, the solid yellow line towards the

       center four different times in about a half a mile” and described that it had

       driven “into the turn lane four times.” Transcript Vol. 1 at 115, 117. He also

       stated that the driver never signaled a lane change. This evidence indicates that




       1
         Before proceeding with our analysis of the validity of the traffic stop, we note that, at the trial court level,
       the State argued that Burrage lacked standing to challenge the constitutionality of the search under both the
       4th Amendment, because he had no reasonable expectation of privacy in the vehicle in which he was a
       passenger, as well as under Article 1 Section 11 of the Indiana Constitution, because Burrage had disclaimed
       any interest in the handgun. In denying Burrage’s motion to suppress, the trial court agreed and based its
       decision, in part, on the determination that Burrage “had no standing to object to a search.” Appellant’s
       Appendix Vol. II at 71. Although we, like the trial court, have concerns about Burrage’s standing to challenge
       the search, we do not address it in our decision because the State on appeal does not raise any issue or
       argument concerning standing. See Bradley v. State, 4 N.E.3d 831, 838 (Ind. Ct. App. 2014) (in resolving a
       claim of unlawful search and seizure, an appellate court should not sua sponte invoke lack of standing), trans.
       denied.

       Court of Appeals of Indiana | Memorandum Decision 02A04-1712-CR-2877 | October 9, 2018              Page 10 of 15
       the vehicle moved or veered into the center turning lane, which was marked

       with turning arrows, although the driver did not signal a lane change or turn.

       Additionally, Detective Sergeant Brooks testified that, in his training and

       experience, this type of improper lane use “could mean that the driver was

       impaired or distracted, which are both reasons to cause traffic accidents.” Id. at

       115. Given these facts, we find that the officers had reasonable suspicion to

       initiate a stop of the Dodge Magnum. See Pridemore v. State, 71 N.E.3d 70, 74-

       75 (Ind. Ct. App. 2017) (finding reasonable suspicion existed to stop a vehicle

       that had crossed into median area located between opposite lanes of travel,

       although officer testified to witnessing vehicle “cross left of center”).


[17]   Furthermore, as the State points out, Burrage’s argument that the driver did not

       violate I.C. § 9-21-8-2(a) because the vehicle did not leave “the right half of the

       roadway” ignores another statute, I.C. § 9-21-8-11, which provides rules for

       roadways divided into three or more lanes. It states:


               Whenever a roadway has been divided into three (3) or more
               clearly marked lanes for traffic, the following rules apply:


               (1) A vehicle shall be driven as nearly as practicable entirely
               within a single lane and may not be moved from the lane until
               the person who drives the vehicle has first ascertained that the
               movement can be made with safety.


               (2) Upon a roadway that is divided into three (3) lanes, a vehicle
               may not be driven in the center lane except under any of the
               following conditions:



       Court of Appeals of Indiana | Memorandum Decision 02A04-1712-CR-2877 | October 9, 2018   Page 11 of 15
                         (A) When overtaking and passing another vehicle where
                         the roadway is clearly visible and the center lane is clear of
                         traffic within a safe distance.


                         (B) In preparation for a left turn.


                         (C) Where the center lane is at the time allocated
                         exclusively to traffic moving in the direction the vehicle is
                         proceeding and is signposted to give notice of the
                         allocation.


       I.C. § 9-21-8-11.2


[18]   Here, Detective Sergeant Brooks observed the Dodge Magnum “cross the

       yellow line, the solid yellow line towards the center four different times in about

       a half a mile” on Lower Huntington Road and not display a turn signal.

       Transcript Vol. 1 at 115. This indicates that, in a short distance, the vehicle

       repeatedly left its lane of travel and moved “towards the center,” which was a

       turning lane, but the vehicle neither slowed to a stop nor signaled a turn or lane

       change. The driver thus failed to comply with I.C. § 9-21-8-11. Burrage argues

       on appeal that because the radio call and written report referred to the vehicle

       as having crossed the center line, the State on appeal was offering “new and

       different reasons” to “legitimize the stop,” namely I.C. § 9-21-8-11, which he

       claims should be rejected as contrary to the evidence. Reply Brief at 5, 7. It was




       2
        I.C. § 9-21-8-11 was amended effective July 1, 2018, but we refer to the statute in effect at the time Burrage
       was charged in 2017.

       Court of Appeals of Indiana | Memorandum Decision 02A04-1712-CR-2877 | October 9, 2018            Page 12 of 15
       not a “new and different” reason nor contrary to the evidence, however, as

       Detective Long explained at the motion to suppress hearing that what occurred

       was not only crossing a center line; it was also considered “not maintaining a

       lane.” Motion to Suppress Transcript at 24. For the reasons stated, the officers

       had reasonable suspicion to initiate the traffic stop of the Dodge Magnum, and

       the trial court did not abuse its discretion when it admitted the firearm into

       evidence at trial.3


                                     II. Sufficiency of the Evidence
[19]   Burrage argues that the evidence was insufficient to support his conviction for

       unlawful possession of a firearm by a serious violent felon. 4 In reviewing

       sufficiency of the evidence claims, this court does not reweigh the evidence or

       assess the credibility of witnesses. Causey v. State, 808 N.E.2d 139, 143 (Ind. Ct.

       App. 2004). We consider only the evidence most favorable to the verdict,

       together with all reasonable and logical inferences to be drawn therefrom. Id.

       We will affirm the conviction “if there is substantial evidence of probative value

       to support the conclusion of the trier-of-fact.” Id. The evidence need not




       3
         The State also asserts that, even if the officers’ stop for a violation of traffic laws was unsound, other reasons
       justified that stop, including: (1) “the officers had reasonable suspicion justifying an identity check of the
       occupants to confirm that Burrage was in the vehicle”; (2) “the seizure [of the handgun] was attenuated from
       the stop”; and (3) discovery of the gun was a result of Burrage’s own conduct, namely placing it on the seat,
       which left it in plain view. Appellee’s Brief at 14, 16, 19. Because we find that the stop was justified for traffic
       violations, we do not reach the State’s arguments.
       4
         Burrage concedes that “[i]f this [c]ourt finds that the traffic stop was justified, . . . his actions do constitute
       the offense of Resisting Law Enforcement.” Appellant’s Brief at 21. Having found that the stop was valid, we
       confine our sufficiency analysis to the unlawful possession of a firearm by a serious violent felon conviction.

       Court of Appeals of Indiana | Memorandum Decision 02A04-1712-CR-2877 | October 9, 2018                 Page 13 of 15
       overcome every reasonable hypothesis of innocence. Sallee v. State, 51 N.E.3d

       130, 133 (Ind. 2016).


[20]   To convict Burrage of Level 4 felony unlawful possession of a firearm by a

       serious violent felon, the State was required to prove that (1) Burrage was a

       serious violent felon as defined in Indiana and (2) he knowingly or intentionally

       possessed a firearm. See Ind. Code § 35-47-4-5. Burrage stipulated at trial that

       he was a serious violent felon under Indiana law. Thus, on appeal, Burrage’s

       claim “deals solely with the sufficiency of the evidence as it relates to Burrage

       being in possession of the firearm,” which was found on the rear bench seat,

       near where he had been seated before he exited the car. Appellant’s Brief at 22.


[21]   Here, at trial, I.C.C. testified that, as the vehicle was being stopped by police,

       Burrage “said he had a gun” and pulled the handgun out of his pants, from

       “inside the belt.” Transcript Vol. 1 at 173-74. I.C.C. further testified that

       Burrage “tried to hand it to me,” at which time I.C.C. “stopped looking” and

       did not see Burrage set the handgun on the seat, but saw it there after Burrage

       had exited the car. After Burrage opened the door and fled, Green heard I.C.C.

       yell, “There’s a gun back here.” Id. at 161. Green testified that the gun did not

       belong to her or to I.C.C., and Wheeler, who owned but did not drive the car,

       testified that it was not his.


[22]   Burrage concedes that I.C.C.’s testimony was direct evidence “that [he] actually

       possessed the firearm” and that I.C.C.’s testimony was supported by Green’s

       testimony. Appellant’s Brief at 24. But he nevertheless contends that the State


       Court of Appeals of Indiana | Memorandum Decision 02A04-1712-CR-2877 | October 9, 2018   Page 14 of 15
       failed to prove he knowingly or intentionally possessed a firearm because (1) the

       State was unable to provide evidence that Burrage was armed when he came

       out of the Hickory Creek Apartments; (2) there was no testimony that Burrage

       made furtive gestures as the vehicle was being stopped; (3) three other

       individuals remained in the automobile during the time Officer Long chased

       Burrage on foot, and “[t]his period was long enough for any of the three to

       place the firearm on the backseat of the vehicle”; and (4) there were no

       fingerprints linking Burrage to the firearm. Id. We find that Burrage’s

       arguments in this regard are challenges to I.C.C.’s eyewitness testimony to

       seeing Burrage with the gun in the back seat right before he opened the door

       and ran. On appeal, we cannot reweigh evidence or judge witness credibility.

       Causey, 808 N.E.2d at 143. I.C.C.’s testimony was sufficient to show that

       Burrage possessed the handgun and left it in the car when he fled. Accordingly,

       the State presented sufficient evidence to convict Burrage of Level 4 felony

       unlawful possession of a handgun by a serious violent felon.


[23]   Judgment affirmed.


       Brown, J. and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A04-1712-CR-2877 | October 9, 2018   Page 15 of 15
