MEMORANDUM DECISION
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                             FILED
the defense of res judicata, collateral
estoppel, or the law of the case.                                    Feb 03 2017, 9:21 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Brian A. Karle                                           Curtis T. Hill, Jr.
Ball Eggleston, PC                                       Attorney General of Indiana
Lafayette, Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthony W. Brown,                                        February 3, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         54A05-1605-CR-1087
        v.                                               Appeal from the Montgomery
                                                         Superior Court
State of Indiana,                                        The Honorable Heather Dennison,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         54D01-1505-F5-1419



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 54A05-1605-CR-1087 | February 3, 2017      Page 1 of 13
                                             Case Summary
[1]   Appellant-Defendant Anthony Brown appeals following his conviction for

      Level 5 felony possession of methamphetamine and the determination that he is

      a habitual offender. Specifically, Brown argues that the trial court abused its

      discretion in admitting certain evidence at trial. He alternatively argues that

      even if the trial court did not abuse its discretion in admitting the challenged

      evidence, his aggregate twelve-year sentence is inappropriate. We affirm.



                              Facts and Procedural History
[2]   On the morning of April 17, 2015, off-duty Crawfordsville Police Lieutenant

      Russ Keller observed a red 2010 Chevrolet Camaro leaving a known drug house

      belonging to Tim Summers. Lieutenant Keller also observed that the vehicle’s

      license plate was expired. Lieutenant Keller relayed his observations to

      Crawfordsville Police Officer Jerod1 Colley, who was on duty and patrolling the

      general vicinity around Summers’s home that morning.


[3]   At approximately 9:00 a.m., Officer Colley located the Camaro and followed it.

      After calling the Camaro’s license plate information into dispatch, Officer

      Colley learned that the license plate on the vehicle was still valid, but was

      registered to a different vehicle. Specifically, the license plate was registered to




      1
        The record is unclear as it provides inconsistent spellings of Officer Colley’s first name, spelling it both
      “Jerod” and “Jared.” Because the State utilizes the spelling “Jerod” in its brief, we will do the same in this
      memorandum decision. Our apologies to Officer Colley if this is not the proper spelling of his first name.

      Court of Appeals of Indiana | Memorandum Decision 54A05-1605-CR-1087 | February 3, 2017             Page 2 of 13
      a 1999 Chevrolet Z-28. Officer Colley then observed the Camaro make an

      illegal turn, after which he activated his emergency lights and initiated a traffic

      stop.


[4]   Upon approaching the Camaro, which was being driven by Brown, Officer

      Colley informed Brown of the reason for the traffic stop. Brown was unable to

      provide a valid registration for the vehicle or proof of insurance. Brown

      provided Officer Colley with a bill of sale and indicated that he had just

      purchased the Camaro. The bill of sale made no mention of the vehicle to

      which the license plate was registered and Brown indicated that the license plate

      was registered to a vehicle which he no longer owned.


[5]   Officer Colley then asked Brown to exit his vehicle and inquired into where

      Brown was coming from. Brown indicated that he had come from Summers’s

      home and that he knew Summers because they had previously worked together.

      Officer Colley asked Brown for permission to search the vehicle and Brown

      consented to the search.


[6]   Officer Colley also said that he would like to pat Brown down for safety

      purposes. Brown “did not have an objection to [Officer Colley] conducting a

      weapons pat-down on him for [officer] safety.” Tr. p. 55. Brown indicated that

      “he may be in possession of a knife” but that he “wasn’t for sure where at on

      him.” Tr. p. 55. As Officer Colley was conducting the pat-down search,

      Officer Colley discovered a plastic baggy containing a white powdery substance

      in Brown’s right pocket. Brown eventually admitted that the substance


      Court of Appeals of Indiana | Memorandum Decision 54A05-1605-CR-1087 | February 3, 2017   Page 3 of 13
       contained within the plastic baggy was “meth.” Tr. p. 62. The substance was

       later tested and was confirmed to be methamphetamine.


[7]    On May 7, 2015, the State charged Brown with Level 6 felony possession of

       methamphetamine. Brown was also alleged to be a habitual offender. The

       State subsequently sought permission to re-docket the charge as a Level 5 felony

       due to Brown’s prior conviction for dealing in a controlled substance, which is

       an enhancing circumstance to the Level 6 felony possession of

       methamphetamine charge. The trial court granted the State’s request for

       permission to re-docket the charge as a Level 5 felony in an order dated January

       22, 2016.


[8]    On March 10, 2016, Brown filed a motion to suppress certain evidence relating

       to the methamphetamine recovered during the traffic stop. Following a

       hearing, the trial court denied Brown’s motion to suppress.


[9]    The trial court conducted a two-day jury trial beginning on March 15, 2016.

       During trial, the State introduced evidence relating to the methamphetamine

       recovered from Brown’s vehicle during the traffic stop. Brown objected to the

       admission of this evidence, arguing that it was recovered in violation of his

       constitutional rights. The trial court disagreed and admitted the State’s

       proffered evidence over Brown’s objection.


[10]   At the end of trial on March 16, 2016, the jury found Brown guilty of Level 6

       felony possession of methamphetamine. Brown subsequently pled guilty to the

       Level 5 felony enhancement and to being a habitual offender. On April 21,

       Court of Appeals of Indiana | Memorandum Decision 54A05-1605-CR-1087 | February 3, 2017   Page 4 of 13
       2016, the trial court sentenced Brown to an aggregate executed term of twelve

       years.



                                  Discussion and Decision
[11]   Brown contends that the trial court abused its discretion in admitting certain

       evidence relating to the methamphetamine recovered from his person during

       the traffic stop. Alternatively, Brown contends that even if the trial court did

       not abuse its discretion in admitting the challenged evidence, his aggregate

       twelve-year sentence is inappropriate in light of the nature of his offense and his

       character. We will discuss each contention in turn.


                                   I. Admission of Evidence
[12]   Brown contends that the trial court abused its discretion in admitting evidence

       relating to the recovery of methamphetamine from his person during the traffic

       stop.


                The admission or exclusion of evidence is entrusted to the
                discretion of the trial court. Farris v. State, 818 N.E.2d 63, 67
                (Ind. Ct. App. 2004). We will reverse a trial court’s decision only
                for an abuse of discretion. Id. We will consider the conflicting
                evidence most favorable to the trial court’s ruling and any
                uncontested evidence favorable to the defendant. Taylor v. State,
                891 N.E.2d 155, 158 (Ind. Ct. App. 2008). An abuse of
                discretion occurs when the trial court’s decision is clearly against
                the logic and effect of the facts and circumstances before the
                court or it misinterprets the law. Id. In determining whether an
                error in the introduction of evidence affected an appellant’s
                substantial rights, we assess the probable impact of the evidence

       Court of Appeals of Indiana | Memorandum Decision 54A05-1605-CR-1087 | February 3, 2017   Page 5 of 13
               on the jury. Oldham v. State, 779 N.E.2d 1162, 1170 (Ind. Ct.
               App. 2002). Admission of evidence is harmless and is not
               grounds for reversal where the evidence is merely cumulative of
               other evidence admitted. Pavey v. State, 764 N.E.2d 692, 703
               (Ind. Ct. App. 2002).


       Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012). “Moreover, the trial

       court’s ruling will be upheld if it is sustainable on any legal theory supported by

       the record, even if the trial court did not use that theory.” Rush v. State, 881

       N.E.2d 46, 50 (Ind. Ct. App. 2008) (citing Gonser v. State, 843 N.E.2d 947, 950

       (Ind. Ct. App. 2006)).


[13]   In arguing that the trial court abused its discretion in admitting the challenged

       evidence, Brown claims that the challenged evidence was recovered in violation

       of the Fourth Amendment to the United States Constitution.2 “The

       fundamental purpose of the Fourth Amendment to the United States

       Constitution is to protect the legitimate expectations of privacy that citizens

       possess in their persons, their homes, and their belongings.” Trotter v. State, 933

       N.E.2d 572, 579 (Ind. Ct. App. 2010) (internal citations omitted).


               Because a traffic stop is a seizure under the Fourth Amendment,
               police may not initiate a stop for any conceivable reason, but
               must possess at least reasonable suspicion that a traffic law has
               been violated or that other criminal activity is taking place.
               Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769,



       2
         Brown makes no separate argument under Article One, Section 11 of the Indiana Constitution. As such,
       Brown has waived any state constitutional claim, and we will review Brown’s claim solely under the federal
       constitution. See Lewis v. State, 911 N.E.2d 76, 83 n.6 (Ind. Ct. App. 2009), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 54A05-1605-CR-1087 | February 3, 2017        Page 6 of 13
               1772, 135 L.Ed.2d 89, 95 (1996); Delaware v. Prouse, 440 U.S.
               648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660, 667 (1979); Finger
               v. State, 799 N.E.2d 528, 532 (Ind. 2003). An officer’s decision to
               stop a vehicle is valid so long as his on-the-spot evaluation
               reasonably suggests that lawbreaking occurred. See State v.
               Washington, 898 N.E.2d 1200, 1205 (Ind. 2008).


       Meredith v. State, 906 N.E.2d 867, 869-70 (Ind. 2009).


[14]   Brown concedes that the initial stop of his vehicle was permissible. However,

       Brown argues that Officer Colley improperly prolonged the stop by detaining

       Brown for longer than was necessary to issue Brown a citation for the illegal

       turn observed by Officer Colley. In support, Brown relies upon the United

       States Supreme Court’s decision in Rodriguez v. United States, 135 S. Ct. 1609,

       1616 (2015), in which the Supreme Court held that a traffic stop which is

       justified by a police-observed traffic violation becomes unlawful if it is

       prolonged beyond the time reasonably required to complete the officer’s

       mission of issuing a traffic ticket for the observed traffic violation.


[15]   Despite Brown’s claim to the contrary, our review of the record, indicates that

       Officer Colley did not prolong the stop beyond the time reasonably required to

       complete Officer Colley’s mission. The record indicates that at the time Officer

       Colley initiated the traffic stop, he had observed both that the license plate on

       the vehicle was not registered to the vehicle Brown was driving and that Brown

       had made an illegal turn. While Officer Colley arguably could have completed

       the task of writing Brown a ticket for the illegal turn without prolonging the



       Court of Appeals of Indiana | Memorandum Decision 54A05-1605-CR-1087 | February 3, 2017   Page 7 of 13
       stop, the record indicates that at the time Officer Colley asked Brown to exit the

       vehicle, his investigation into the registration of the vehicle was ongoing.


[16]   When Officer Colley approached the vehicle, Brown failed to provide a proper

       registration for the vehicle or proof of insurance. Brown provided a bill of sale

       and indicated that he had recently purchased the vehicle and that the license

       plate on the car was registered to a vehicle that Brown had previously owned.

       However, the bill of sale made no mention of the vehicle to which the license

       plate was registered and Brown failed to provide any documentation indicating

       that the license plate was properly registered to a vehicle belonging to him.


[17]   Brown requested permission to look in the backseat of the vehicle to try to find

       valid proof of insurance. It was at this point that Officer Colley requested

       permission to search the vehicle. It is undisputed that Brown consented to the

       search.


[18]   At this point, Officer Colley also requested permission to pat Brown down for

       safety purposes. Brown “did not have an objection to [Officer Colley]

       conducting a weapons pat-down on him for [officer] safety.” Tr. p. 55. Brown

       indicated that “he may be in possession of a knife” but that he “wasn’t for sure

       where at on him.” Tr. p. 55. As Officer Colley was conducting the pat-down

       search, Officer Colley discovered a plastic baggy containing a white powdery

       substance in Brown’s right pocket.


[19]   Upon review, we cannot say that Officer Colley prolonged the traffic stop

       longer than was reasonable to complete his investigation into the apparent issue

       Court of Appeals of Indiana | Memorandum Decision 54A05-1605-CR-1087 | February 3, 2017   Page 8 of 13
       with the vehicle’s registration. Brown’s vehicle was first brought to Officer

       Colley’s attention due to the question surrounding the legality of the

       registration. It is not unreasonable that Office Colley would investigate the

       validity of the vehicle’s registration upon stopping the vehicle. Accordingly, we

       conclude that the traffic stop was not prolonged such as to make it unlawful.


[20]   Further, the fact that Officer Colley asked Brown about where he had been

       prior to the initiation of the traffic stop does not render the stop unreasonable as

       it did not prolong the traffic stop.

               During a lawful detention, police do not need a reasonable
               suspicion to ask questions of the detainee. In Muehler v. Mena,
               544 U.S. 93, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005), the [United
               States Supreme] Court emphasized that it has “held repeatedly
               that mere police questioning does not constitute a seizure.” 544
               U.S. at 101, 125 S.Ct. at 1471, 161 L.Ed.2d at 308, quoting
               Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115
               L.Ed.2d 389, 398 (1991). “Even when officers have no basis for
               suspecting a particular individual, they may generally ask
               questions of the individual[.]” Id., quoting Bostick, 501 U.S. at
               434–35, 111 S.Ct. at 2386, 115 L.Ed.2d at 398. An officer
               making a traffic stop can ask questions of a detained motorist,
               but the detainee is not obligated to respond, and “unless the
               detainee’s answers provide the officer with probable cause to
               arrest him, he must then be released.” Berkemer v. McCarty, 468
               U.S. 420, 439-40, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317, 334
               (1984) (footnotes omitted).


       Washington, 898 N.E.2d at 1204. Again, Officer Colley asked questions of

       Brown during the course of his investigation into the validity of the vehicle’s

       registration. The fact that Brown decided to answer Officer Colley’s questions

       Court of Appeals of Indiana | Memorandum Decision 54A05-1605-CR-1087 | February 3, 2017   Page 9 of 13
       and ultimately consent to a search of his vehicle and pat-down of his person do

       not make the stop, which was not prolonged by Officer Colley’s questions,

       unreasonable. In sum, concluding that Officer Colley did not prolong the valid

       traffic stop longer than was reasonably necessary to complete his investigation

       into the validity of the vehicle’s registration, we further conclude that the trial

       court did not abuse its discretion in admitting the evidence recovered as a result

       of said traffic stop.


                              II. Appropriateness of Sentence
[21]   Brown alternatively contends that his aggregate twelve-year sentence is

       inappropriate. We disagree.


[22]   Indiana Appellate Rule 7(B) provides that “The Court may revise a sentence

       authorized by statute if, after due consideration of the trial court’s decision, the

       Court finds that the sentence is inappropriate in light of the nature of the offense

       and the character of the offender.” In analyzing such claims, we “‘concentrate

       less on comparing the facts of [the case at issue] to others, whether real or

       hypothetical, and more on focusing on the nature, extent, and depravity of the

       offense for which the defendant is being sentenced, and what it reveals about

       the defendant’s character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App.

       2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans.

       denied). The defendant bears the burden of persuading us that his sentence is

       inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).




       Court of Appeals of Indiana | Memorandum Decision 54A05-1605-CR-1087 | February 3, 2017   Page 10 of 13
[23]   With respect to the nature of Brown’s offense, the record demonstrates that

       Brown possessed methamphetamine and that Brown is a habitual offender. In

       support of his claim that his sentence is inappropriate, Brown points to the fact

       that he cooperated with Officer Colley’s requests during the traffic stop and his

       arrest. While this may be true, we also note that Brown’s offense was elevated

       to a Level 5 felony due to his prior conviction for Class B felony dealing in a

       schedule II controlled substance. In addition, the habitual offender

       determination is supported by Brown’s extensive criminal history. It is also of

       note that in exchange for Brown’s guilty plea to the Level 5 felony

       enhancement and habitual offender determination, the State agreed to dismiss

       an unrelated case in which Brown was charged with Level 4 possession of

       methamphetamine and faced an additional twelve-year sentence.


[24]   With respect to Brown’s character, the record demonstrates that Brown has an

       extensive criminal history. Specifically, with respect to Brown’s criminal

       history, the Montgomery County Probation Department noted that Brown “has

       an extensive criminal history which began as a juvenile” and that Brown “has

       served the majority of his adult life in prison, on parole, probation or home

       detention.” Appellant’s App. Vol. II (Confidential), p. 108. Brown’s criminal

       history includes juvenile adjudications leaving home without permission of a

       parent and three adjudications for what would have been Class D felony theft if

       committed by an adult. Brown’s criminal history also included the following

       convictions: Class B felony dealing in a schedule II controlled substance, six

       counts of Class B felony burglary, two counts of Class C felony forgery, three


       Court of Appeals of Indiana | Memorandum Decision 54A05-1605-CR-1087 | February 3, 2017   Page 11 of 13
       counts of Class D felony theft, Class A misdemeanor check deception, Class A

       misdemeanor driving while suspended, Class A misdemeanor carrying a

       handgun without a license, and Class A misdemeanor false informing. Brown

       was also charged with two unrelated charges for Level 3 felony possession of

       methamphetamine while awaiting trial in the instant matter. It also appears

       that on at least one occasion, Brown has been found to be in violation of the

       terms of his placement on community corrections. In addition, Brown reported

       that he has previously been disciplined while in prison for a “failed drug

       screen,” receiving a “loss of good time.” Appellant’s App. Vol. II

       (Confidential), p. 108.


[25]   In claiming that his sentence is inappropriate with respect to his character,

       Brown argues that “[i]n the two and one-half years prior to his arrest, he ran a

       successful business as a building contractor and he employed a crew of

       individuals through that business” and “[b]ecause Brown is apparently a skilled

       contractor and operated his own business, there is evidence that he can become

       a productive member of society if given an opportunity outside of prison.”

       Appellant’s Br. p. 17. Brown also argues that he was the primary breadwinner

       for his fiancée and their children. Brown’s arguments, however, are undercut

       by his statement at sentencing indicating that he chose not to work in an

       attempt to avoid an outstanding warrant for his arrest.


[26]   Brown’s substantial criminal history indicates that he has not only a disdain for

       the criminal justice system, but also a disdain for the rights and safety of others.

       Moreover, the Montgomery County Probation Department indicated that a risk

       Court of Appeals of Indiana | Memorandum Decision 54A05-1605-CR-1087 | February 3, 2017   Page 12 of 13
       assessment of Brown placed him in the “High” category to re-offend.

       Appellant’s App. Vol. II (Confidential), p. 108. As such, we conclude that

       Brown has failed to prove that his sentence is inappropriate in light of the

       nature of his offenses and his character.



                                               Conclusion
[27]   Concluding that the trial court did not abuse its discretion by admitting the

       challenged evidence and that Brown has failed to prove that his sentence is

       inappropriate, we affirm the judgment of the trial court.


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


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




       Court of Appeals of Indiana | Memorandum Decision 54A05-1605-CR-1087 | February 3, 2017   Page 13 of 13
